High Court: Surrender of man convicted in absentia cannot be ordered unless it is ‘unequivocally established’ trial date was known

High Court
High Court

An application for the surrender of a man sought by Romania under a European Arrest Warrant has been refused in the High Court.

Calling for modification of the European Arrest Warrant Act 2003, Mr Justice Donald Binchy said the man was benefitting from the Romanian Court’s decision to grant his request for an adjournment and that he had orchestrated the state of affairs by giving a Romanian address as his domicile.


At the Onesti Court of Law in December 2012, Marius Bogdan Zarnescu was sentenced to one year’s imprisonment, suspended for three years, in respect of the offence of causing bodily injury. This sentence was affirmed by the Bacau Court of Appeal in 2013.

In 2015, Mr Zarnescu was caught driving without a licence. At the Onesti Court in April 2017, Mr Zarnescu was convicted of this offence – he did not attend on this date, but he was represented by a lawyer who pleaded guilty on his behalf. Mr Zarnescu was sentenced to eight months’ imprisonment, and the Court ordered the revocation of the suspension of the earlier sentence.

An appeal against this conviction was listed before the Bacau Court on 12 September 2017, but prior to this, Mr Zarnescu requested an adjournment for the purposes of hiring a different lawyer. In his letter to the Bacau Court, Mr Zarnescu gave an address in Romania as his “domicile”, however, the Court was aware of his address in Ireland.

The adjournment was granted, and the hearing was listed for 7 November 2017. The Bacau Court notified Mr Zarnescu of this hearing date in a letter which was addressed to his domicile in Romania – as such, Mr Zarnescu’s father signed the acknowledgement of receipt.

At the hearing on 7 November 2017, “debates were closed” and a decision was given on 22 November 2017 – on this date, the Bacau Court affirmed the sentence handed down by the Onesti Court. Mr Zarnescu was neither in Court nor represented on either date.

European Arrest Warrant

In January 2018, the Onesti Court, as the Issuing Judicial Authority (IJA) issued a European Arrest Warrant for Mr Zarnescu. The EAW was endorsed in June 2019, and Mr Zarnescu was arrested soon thereafter.

In the present application to the High Court, the Minister for Justice & Equality sought an order for Mr Zarnescu’s surrender to Romania.

Since Mr Zarnescu was convicted in absentia, the case turned on the interpretation of Section 45 of the European Arrest Warrant Act 2003 (as amended).

Mr Zarnescu submitted that he did not receive notice of the hearing dates in November 2017, and that he was waiting to hear from the Bacau Court in response to his request for an adjournment before engaging a new lawyer.


In Case C-108/16 PPU Dworzecki, the CJEU held that the service of a summons on an adult belonging to the household of the person whose surrender is sought, and who undertakes to pass the summons on to that person, does not of itself satisfy the conditions set out in Article 4a(1)(a)(i) of the Council Framework Decision 2002/584/JHA as amended by Council Framework Decision 2009/299/JHA. This is because service in such a manner cannot “unequivocally” establish that the person whose surrender is sought was aware of the scheduled trial. More is required in order to arrive at that conclusion.

The Minister relied on paragraphs 50-51 of Dworzecki which state that the executing judicial authority may “take into account other circumstances that enable it to be assured that the surrender of the person concerned does not mean a breach of his rights of defence”. In this context, it states that the executing judicial authority may “have regard to the conduct of the person concerned”, and may pay particular attention to “any manifest lack of diligence on the part of the person concerned, notably where it transpires that he sought to avoid service of the information addressed to him”.

Furthermore, the Minister submitted that even if the Bacau Court had addressed its letter to Mr Zarnescu’s address in Ireland, this would not have satisfied any of the scenarios described in Article 4a(1)(a)(i) of the Framework Decision, as reflected in the Table to Section 45 of the 2003 Act (as amended). The Minister also argued that there was a lack of diligence on Mr Zarnescu’s part, and that his surrender should be ordered notwithstanding the scenarios set out in the table to Section 45 because there was clearly no breach of Mr Zarnescu’s rights of defence in the proceedings in Romania.

Respondent orchestrated the present state of affairs

Mr Justice Binchy said that if he was to determine the matter on the basis of the interpretation of the Framework Decision in Dworzecki, he would have no hesitation in making an order for surrender. Mr Justice Binchy said that it was clear Mr Zarnescu had “orchestrated the state of affairs” that came to pass.

However, Dworzecki was concerned with the interpretation of the Framework Decision – not the 2003 Act (as amended).

Paragraph (d)3.1b. of the Table to Section 45 of the 2003 Act  (as amended) states that, where the person did not appear at trial:

“the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial”

Although it was likely that Mr Zarnescu was aware the rescheduled hearing date, Mr Justice Binchy said that “being satisfied that something is likely to have occurred falls some way short of being “unequivocally” satisfied as to its occurrence” as required by the 2003 Act (as amended).

Finding that the requirements of paragraph (d)3.1b were not met, Mr Justice Binchy said the application must be refused. Explaining that his decision was based on the unambiguous language of the 2003 Act (as amended), Mr Justice Binchy said the comments in Dworzecki did not enable him to arrive at a different conclusion based on Mr Zarnescu’s conduct.

Adding that he refused the application “with considerable misgivings” having regard to Mr Zarnescu’s conduct, Mr Justice Binchy said Mr Zarnescu was effectively benefitting from the fact that the Bacau Court accommodated him in his request for an adjournment, as well as his own subsequent inaction.

Mr Justice Binchy concluded by stating that some modification to Section 45 was necessary “in order to avoid such undesirable outcomes”.

© Irish Legal News Ltd 2020

Tags: Extradition

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