The Supreme Court has upheld a High Court decision refusing to surrender Marius Bogdan Zarnescu to Romania under a European arrest warrant. The Court found that it had not been established unequivocally that he knew the date of an appeal hearing held in his absence.
The appeal concerned a Romanian sentence imposed after Mr Zarnescu’s conviction for driving without a licence in April 2017. The first instance court also revoked the suspension of a one-year prison sentence arising from an earlier assault conviction. Mr Zarnescu appealed. He had been represented by a lawyer at the first instance hearing, but had no lawyer at the appeal hearing.
Before the appeal hearing, Mr Zarnescu wrote to the Bacău Court of Appeal seeking an adjournment so he could retain a new lawyer. He said he was living in Ireland and could not travel because of work commitments. His letter gave an address in Bray as his residence and a Romanian address as his domicile. The appeal was adjourned to 7 November 2017. A summons for that date was delivered to the Romanian domicile address and received by his father. There was no direct evidence that his father passed it on or told him what it said.
The appeal proceeded without Mr Zarnescu or legal representation, and the first instance decision was upheld. Romania issued the arrest warrant in January 2018. In January 2020, the High Court refused surrender, finding that the evidence did not show unequivocally that Mr Zarnescu knew the rescheduled hearing date.
The Minister for Justice argued in the Supreme Court that a court could consider circumstances beyond the specific notification and representation situations listed in section 45 of the European Arrest Warrant Act 2003. The parties agreed that the section should be interpreted in light of European Union case law. The Supreme Court said the listed situations were not exhaustive: surrender could still be ordered if, after examining the circumstances, the court was satisfied that the person’s defence rights had been respected.
But the Court said actual knowledge of the hearing date and the consequences of not attending was required before a waiver of the right to attend could be found. A person’s diligence could be considered, but lack of diligence alone did not establish knowledge. Service on a family member was not enough by itself.
The Supreme Court concluded that the evidence did not establish that Mr Zarnescu knew the adjourned date or had waived his right to be present. It upheld the refusal of surrender, while finding that the High Court had applied an incorrect legal test under section 45.