The High Court refused an application to surrender a Romanian man to Romania under a European Arrest Warrant, finding that the statutory test for proceeding with a sentence imposed in his absence had not been met.
The judgment, delivered by Mr Justice Binchy on 13 January 2020, concerned a request by the Minister for Justice and Equality to surrender Marius Bogdan Zarnescu. The warrant related to an eight-month sentence for driving without a licence and the activation of a previously suspended one-year sentence for bodily injury. The sentences had been combined, producing a total term of one year and eight months.
Zarnescu was convicted at first instance in April 2017 while absent, but represented by a lawyer he had chosen. An appeal was filed on his behalf. He later wrote to the Bacau Court of Appeal seeking an adjournment so he could instruct another lawyer and because he could not attend the listed hearing. The court adjourned the appeal to 7 November 2017. Romanian authorities said notice was sent to an address in Romania that Zarnescu had identified as his domicile; his father signed for it. Zarnescu said he was unaware of the later appeal hearings, and he was neither present nor represented when the appeal was heard and sentence was imposed.
The Minister acknowledged errors in the warrant’s account of Zarnescu’s representation and right to a further appeal or retrial, and relied on the additional information supplied by the Romanian issuing authority. The respondent argued that surrender was barred under section 45 of the European Arrest Warrant Act 2003 because he had not appeared at the proceedings resulting in the sentence and none of the statutory exceptions applied.
Justice Binchy said Zarnescu’s inaction after seeking an adjournment weighed against him. The judge considered it likely that his father had passed on the summons or its contents, but said likelihood did not establish unequivocally that Zarnescu knew the hearing date and had been told a decision could be made if he did not attend. The fact that the summons was received by his father was not enough to satisfy that requirement.
The court therefore refused the surrender application under section 45. It did not make an order surrendering Zarnescu to Romania. The judge expressed misgivings about the result in light of the respondent’s conduct and said the legislation required modification to avoid what he described as undesirable outcomes.