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Minister For Justice v Culeac (Approved)
Factual and Procedural Background
The Applicant sought the surrender of the Respondent on foot of a European Arrest Warrant issued by Judge Tescu of The City Court on 11 October 2023. The Respondent is sought to serve an aggregate custodial sentence of six years imposed by The City Court of Appeal on 4 October 2023 for a number of offences. The Respondent was arrested following an SIS alert and brought before the High Court on 26 November 2025; the EAW was produced to the Court on 1 December 2025. The Respondent was admitted to bail on 1 December 2025. Multiple section 20 requests for additional information were sent to the issuing judicial authority and answered between January and April 2026. There was no dispute as to identity and the issuing judge was certified as a judicial authority under the relevant statute. The Court found no bar under ss.22–24 of the European Arrest Warrant Act 2003 (as amended). The offences are not 'tick-box' offences for the purposes of automatic correspondence and correspondence with Irish offences was considered and accepted by the Court.
Legal Issues Presented
- Whether the offences specified in the EAW correspond to offences under Irish law (s.5 of the 2003 Act).
- Whether the EAW met the statutory formal requirements under Section 11 of the 2003 Act, in particular s.11(1A)(d) and (g), given alleged lack of clarity regarding the offences and penalties.
- Whether surrender must be refused because the Respondent's defence rights were not upheld in the appeal proceedings that resulted in conviction and sentence in absentia, including consideration of Table D to s.45 (Article 4a of the Framework Decision) and related case law on trials in absentia and waiver.
Arguments of the Parties
Applicant's Arguments
- The Court may place mutual trust in the issuing authority's statements and documentation, permitting reliance on the certification that the Respondent was represented and informed in the relevant proceedings.
- The information and additional documents provided satisfy Section 11 and the conditions in Part D to Section 45 of the 2003 Act for an in absentia conviction.
Respondent's Arguments
- The EAW is insufficiently clear about the offences and the penalty, engaging s.11(1A)(d) and (g).
- Surrender must be refused because the Respondent's defence rights were breached: he did not know of the prosecution appeal, did not mandate the lawyer who represented him at the appeal, and was not present at the appeal hearing that resulted in conviction and activation of a suspended sentence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Minister for Justice v Dolny [2009] IESC 48 | Principle for assessing correspondence: whether acts constituting the offence in the issuing state would, if committed in Ireland, constitute an offence here. | Relied on to assess and confirm correspondence between the foreign offences and specified Irish offences (Finance Act and Customs Act provisions). |
| Minister for Justice v Fiszer [2015] IEHC 664 | Supports placing mutual trust in issuing authority statements and that a lawyer will, in the normal course, act only on instructions; used to rebut assertions that a mandate was absent. | Applicant relied on this principle; the Court distinguished the present facts from Fiszer where the respondent's assertions were found deficient. |
| Minister for Justice v Sipka [2021] IEHC 587 | Authority where surrender was refused because the lawyer appointed by the court had no mandate from the respondent; s.45 requirement not met. | Used to illustrate that proof of a mandate is necessary when relying on Table D grounds; Court considered it in assessing mandate evidence. |
| Minister for Justice v Fiszer [2015] IEHC 644 | (Alternate citation in the opinion) Principle that the executing court may place mutual trust in statements from the issuing authority regarding mandates and lawyer conduct. | Cited in discussion of mutual trust; Court noted factual differences from present case. |
| Minister for Justice v Vingris [2017] IEHC 517 | Authority rejecting a respondent's claim of no mandate where respondent had earlier mandated counsel and evidence did not show withdrawal of mandate. | Referenced in assessing whether an earlier mandate continued to cover appellate proceedings; Court found factual distinction here. |
| Minister for Justice v Zarnescu [2020] IESC 59 | Comprehensive summary of principles on return after in absentia trials, including that s.45 examples are not exhaustive and factors for assessing whether rights of defence were respected. | The Court applied Baker J's multi-factor framework from Zarnescu to structure its analysis of waiver, awareness, and protection of defence rights. |
| Minister for Justice v Szamota [2023] IECA 143 | Confirms a relatively broad approach to waiver subject to defence rights; executing authority may consider conduct such as avoiding service or contact with lawyers. | Considered in assessing whether the Respondent's conduct could be treated as an unequivocal waiver; Court concluded it could not. |
| Minister for Justice v Szlachcikowski [2024] IECA 2024 | Discusses the requirement that waiver be unequivocal and that the accused ordinarily must appreciate consequences of behaviour; acknowledges right to attend is a right not an obligation. | Used to assess the standard for unequivocal waiver; Court found evidence here insufficient to establish such waiver. |
| Bertino v Public Prosecutor's Office Italy [2024] UKSC 9 | Permits fact-specific findings of unequivocal waiver without explicit prior warning in strong factual cases. | Quoted and applied by analogy; Court noted possibility of waiver without explicit notice but found facts here not strong enough to infer waiver. |
| Dworzecki | Referenced in relation to CJEU authority on assessing awareness and waiver (as cited in the opinion). | Referenced in the context of the Zarnescu framework; the Court considered the CJEU approach to awareness and waiver in its analysis. |
| LU & PH | Referenced for the proposition that the executing authority may consider circumstances showing the requested person sought to avoid service or contact. | Used to support consideration of respondent conduct; Court found no evidence here of avoidance sufficient to infer waiver. |
Court's Reasoning and Analysis
The Court proceeded methodically. It accepted identity, certified the issuing judge as a judicial authority and found no bars under ss.22–24. It accepted correspondence of the foreign offences to Irish offences (Finance Act and Customs Act provisions) and that minimum gravity was met. The Court addressed two objections: (i) alleged non-compliance with Section 11 about clarity of the EAW; and (ii) that the Respondent's defence rights were breached because he was convicted in absentia on appeal without having mandated counsel or being aware of the appeal.
On Section 11 the Court rejected the contention of internal inconsistency, finding the warrant and supplementary materials sufficiently clear as to attendance and protections at the various hearings.
On the s.45/in absentia issue the Court analysed whether the circumstances certified in Part D (Boxes 3.2/3.3) were established. The issuing authority certified that, although the Respondent did not appear, he had given a mandate to a chosen lawyer who defended him at the appeal or had been served with the decision via that lawyer and informed of retrial/appeal rights. The Court requested and considered additional material from the issuing authority and correspondence from the Respondent's Romanian lawyers (Company A) and the Respondent's affidavits.
The Court applied the principles from prior authorities (notably Zarnescu and related appellate decisions) concerning the need for unequivocal proof that the accused was aware of the trial date and consequences and that any waiver of presence was unequivocal. Although the law permits mutual trust in the issuing authority's statements in appropriate cases, the Court found the established facts here differed materially from those in earlier cases where mandates were inferred. The Respondent had been acquitted at first instance, had ceased contact with his former lawyers, lived in this jurisdiction, did not receive notice of an appeal, did not sign any document mandating representation for the appeal, and was not shown to have taken steps to avoid service. The Romanian lawyers confirmed lack of contact and absence of specific instructions for the appeal. Applying the Zarnescu factors, the Court concluded it was not satisfied that the Respondent was aware of the appeal or had given a mandate for the appellate proceedings and that it could not be said he had unequivocally waived his right to be present.
Holding and Implications
DISMISSED — surrender not ordered.
Holding: The Court refused to order the surrender of the Respondent on the EAW because it was not satisfied that the conditions in Part D to s.45 (Boxes 3.2 or 3.3) were established and, on the overall evidence, the trial in absentia did not proceed in circumstances that respected the Respondent's defence rights.
Implications: The direct effect is that the Respondent will not be surrendered on this warrant. The opinion does not purport to establish a new general principle beyond applying and distinguishing existing authorities; no broader precedent beyond the Court's application of established authorities was claimed.
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