Supreme Court revises principles on trial in absentia in extradition context

About this case:

• Citation:
  [2026] IESC 39
• Court:
  Supreme Court
• Judge:
  Ms Justice Aileen Donnelly

Delivering the leading judgment for the Supreme Court, Ms Justice Aileen Donnelly found that the only reasonable inference from the information provided to the court was that there was awareness on part of the appellant that his trial and sentencing would proceed in Italy in his absence and that he had implicitly and unequivocally waived his right to appear.

Background

On 11 April 2018, the appellant was convicted and sentenced in absentia by an Italian court for trafficking narcotic drugs and psychotropic substances.

Prior to his conviction, the appellant spent six months in pre-trial detention in Italy and was released on 1 March 2015. The appellant was aware that proceedings were in being against him at the time of his release, but he did not know the precise date and location where his trial would take place as such details were not then available.

By a mandate signed on 2 March 2015, the appellant appointed defence counsel and elected his domicile in Italy where the judicial acts were to be served. The judicial acts were delivered to the address provided by the appellant, but in circumstances where they were not collected, were then served on his defence counsel.

On 3 February 2016, the Italian court ordered that the preliminary hearing proceed in the appellant’s absence where the appellant was represented by a defence lawyer, had elected domicile, had been notified of the hearing and had expressly waived his attendance at the hearing.

On 11 January 2017, the trial court did not record that the appellant was formally notified of the hearing or had expressly waived attendance, but having regard to the Italian Code of Criminal Procedure, ordered the case to proceed in his absence.

By European arrest warrant dated 21 April 2020, the High Court was requested to surrender the appellant to serve his sentence. The warrant indicated that the appellant would have the right to request a retrial or to request an appeal after his surrender.

The High Court

The High Court considered whether the fair trial and defence rights of the appellant had been respected, finding that the evidence demonstrated that the appellant was aware of the proceedings and remained represented throughout, but knowingly absconded and absented himself from the proceedings.

In those circumstances, the High Court found that the appellant could not now rely on the absence of an automatic right to a retrial to prevent his surrender and ordered his surrender.

On appeal, the issue for the Supreme Court was whether the High Court may order surrender following a trial in absentia in the absence of an express statement from the issuing judicial authority that the requested person had knowledge of the consequences of failure to appear.

The resolution of that question turned on whether the Supreme Court could be satisfied that the appellant was so aware and thus, could be held to have implicitly waived his right to be present.

The Supreme Court

Ms Justice Donnelly noted the parties’ agreement that absence of precise knowledge of the date and place of trial is not a bar to surrender in light of the Court of Appeal’s decision in Minister for Justice v Szamota (No 2) [2023] IECA 143, which was based upon the developing case law of the European Court of Justice.

In circumstances where the parties also agreed that the principles previously set out by the Supreme Court in Minister for Justice v Zarnescu [2020] IESC 59 required updating, and having considered recent developments in the approach to be taken to conditions for surrender under Article 4a of Council Framework Decision 2002/584/JHA, incorporated into law in this jurisdiction by s.45 of the European Arrest Warrant Act 2003, Ms Justice Donnelly revised the principles set out in Zamescu.

In that regard, the judge set out at paragraph 85 of her judgment a number of revised principles including that the requested person need not adduce evidence as to why they did not attend their trial, but that the High Court, when assessing whether defence rights have been met, must carry out an assessment as to whether the factual circumstances demonstrate that the requested person waived his or her right to attend.

Applying the principles to the appellant’s case, Ms Justice Donnelly did not accept that there was significance to the absence from the mandate of an express reference to the possibility of trial in absentia, noting that “The clear inference to be drawn from the contents of the mandate, which was clearly extensive, is that by the mandate the appellant was entrusting his lawyer to represent him in anticipation that this would include representation where he was not present at the trial.”

The court considered upon the numerous “striking features” of the case, including that the appellant had spent six months in custody whilst being investigated, had given his address for service to the authorities and had signed the mandate after he left custody, which mandate granted to his lawyer the right to represent him at all stages of the proceedings and on appeal.

Highlighting that there was “never any reality” in the appellant contesting a lack of knowledge of the proceedings and noting that he had not done so, Ms Justice Donnelly was satisfied that all of the circumstances fed into whether there was evidence of the appellant’s knowledge of the consequences of his failure to appear and held that any inference favourable to the appellant arising from his express waiver of his right to attend his preliminary hearing could be excluded as there was no trial scheduled at the time.

Finding that the appellant had left Italy for Ireland after his release in March 2015 with knowledge of his serious criminal proceedings, Ms Justice Donnelly considered that the only reasonable inference was that there was awareness on his part of the consequences that the trial would proceed in his absence and that a decision, along with a sentence, could be handed down.

The court was further reassured that the appellant’s defence rights had been met and that he unequivocally waived his right to appear at trial in the full knowledge of the proceedings and of the consequences of failing to appear.

Ms Justice Donnelly outlined that the High Court, as the executing judicial authority, has two separate pathways to surrender: where a condition in the Table to s.45 is met, rendering surrender mandatory, or where the defence rights of the requested person have otherwise been met, in which case surrender is optional.

The judge also explained that the High Court is entitled to address whether the information provided by the issuing judicial authority actually meets the conditions indicated, and must assess all information provided including evidence provided by the requested person.

Finally, the court considered that where the trial in absentia was a result of the exclusion of the person due to misbehaviour, the importance of respecting defence rights would, in the absence of any decision of the Court of Justice to the contrary, require close consideration of the decisions of the European Court of Human Rights on the necessity to inform a person of the risks of their continued behaviour prior to excluding them from their trial. 

Conclusion

Accordingly, the Supreme Court dismissed the appeal and affirmed the High Court’s order.

The Minister for Justice, Home Affairs and Migration v Christian Sunday Asaiki [2026] IESC 39