Background
Italy issued a European Arrest Warrant seeking the surrender of David Ikekhua, a Nigerian national resident in Ireland, to serve an aggregated sentence of 8 years and 4 months’ imprisonment for drug trafficking and participation in a criminal organisation between 2003 and 2007. The warrant related to an “Aggregation Order” issued on 5 April 2024 by the Office of the Prosecutor General in Ancona, which consolidated two sets of enforceable judgments: a Perugia Court of Appeal decision of 23 January 2015 (confirming a first-instance conviction of 19 May 2014) and an Ancona Court of Appeal decision of 11 July 2023 (partially reforming a Macerata first-instance decision of 9 October 2018). Ikekhua was arrested in Ireland on foot of an SIS alert on 12 November 2025 and produced before the High Court.
A matter of central importance was that Ikekhua had been deported from Italy by the Italian authorities themselves on 1 August 2014 — before any of the contested proceedings took place. He swore on affidavit that he believed all criminal proceedings against him had concluded by the time of his deportation and that he had no knowledge of any subsequent trials. He was unable to contact his former Italian lawyer from Cloverhill Prison. All four subsequent hearings — the first-instance trials in Perugia (19 May 2014) and Macerata (9 October 2018) and the appeals in Perugia (23 January 2015) and Ancona (11 July 2023) — were conducted in his absence, with Italian lawyers purportedly representing him on the basis of earlier mandates or court appointment. Italy invoked paragraph 3.1b of Part D of the warrant for both enforceable decisions, asserting that it had been “unequivocally established” that Ikekhua was aware of the scheduled trials. In response to requests for further information under section 20 of the 2003 Act, Italy provided no evidence of any direct, personal notification to the respondent and relied solely on the principle under Italian law that notifications to a defence lawyer of choice are deemed valid service on the defendant.
Ikekhua objected to his surrender, arguing that it was prohibited by section 45 of the European Arrest Warrant Act 2003 (as amended), which implements Article 4a of the 2002 Framework Decision as amended by the 2009 Framework Decision. The respondent contended that, since Italy itself had deported him before the trials, he could not have been personally present, and there was no evidence that he ever actually received notice of or participated in those proceedings. The applicant Minister argued that the presence of retained lawyers of choice throughout the proceedings and the absence of any demonstrated irregularity in those lawyers’ mandates provided sufficient assurance of fair trial rights.
The Court’s Holding
Mr. Justice Gillane refused to order the surrender of the respondent. The court held that the conditions necessary to permit surrender of a person convicted in absentia under section 45 of the 2003 Act and Article 4a of the 2002 Framework Decision had not been satisfied. Where a warrant invokes paragraph 3.1b — asserting that it was “unequivocally established” that the respondent was aware of the scheduled trial — that assertion must be supported by actual evidence of personal knowledge. The reliance by Italy on deemed service through lawyers, without any separate evidence that notification in fact reached the respondent, did not meet this standard, particularly given that Italy’s own deportation order was the very reason Ikekhua was outside the jurisdiction for every hearing.
Drawing on the Supreme Court’s analysis in Minister for Justice and Equality v. Zarnescu [2020] IESC 59, the ECtHR’s reasoning in Sejdovic v. Italy and M.T.B. v. Turkey, and CJEU authority including Melloni (Case C-399/11) and Zdziaszek (Case C-271/17 PPU), the court affirmed that a waiver of the right to be present at trial must be established in an unequivocal manner. The court found that the mere fact that lawyers had appeared on Ikekhua’s behalf — under mandates that may have originated years earlier and which were never refreshed after deportation — did not amount to unequivocal evidence that the respondent had knowingly authorised those lawyers to represent him at trials of which he had no actual knowledge.
The court further accepted the respondent’s submission that, because the sentence sought to be enforced was an aggregated one drawn from two sets of proceedings, a fatal infirmity in any one of those underlying proceedings infected the entire warrant. Since the conditions of section 45 were not satisfied in relation to at least the proceedings conducted after the respondent’s deportation, surrender of the respondent to serve the full aggregated sentence could not be ordered.
Key Takeaways
- A European Arrest Warrant invoking paragraph 3.1b (awareness “unequivocally established” by means other than personal summons) must be supported by evidence that notification actually reached the requested person; domestic law deeming service on a lawyer to be service on the accused does not, without more, satisfy the autonomous EU standard.
- Where the issuing state itself deported the requested person before the relevant trials, that state bears a heightened obligation to demonstrate that he or she had actual knowledge of subsequent proceedings; the absence of any such evidence is fatal to a surrender request based on in absentia convictions.
- Lawyer representation at trial, without proof that the requested person retained or renewed a mandate for those specific proceedings, cannot on its own establish a knowing and unequivocal waiver of the right to be present, particularly where the person swears he believed proceedings had concluded before his deportation.
- An infirmity under section 45 in any one of the proceedings underlying an aggregated sentence renders the entire warrant defective; the executing authority cannot order partial surrender on an aggregated order.
Why It Matters
This decision reinforces a strict approach to the in absentia safeguards in the European Arrest Warrant regime and will be of immediate relevance to practitioners in jurisdictions where domestic law treats service on defence counsel as equivalent to service on the accused. The court’s reasoning makes clear that such domestic equivalences — however well-established in the issuing state’s procedural law — cannot substitute for the autonomous EU requirement of unequivocal actual knowledge, a standard that Irish courts and the CJEU have consistently treated as a floor, not a ceiling, for rights protection.
The judgment also highlights an under-examined tension in the EAW system: a state that deports a convicted or remand prisoner effectively forecloses that person’s ability to participate in subsequent proceedings, yet later seeks their return to serve a sentence imposed in those very proceedings. By refusing surrender in these circumstances, the High Court signals that executing judicial authorities will scrutinise carefully whether the issuing state’s own conduct has contributed to the absence it now invokes to justify an in absentia conviction, and will not allow domestic legal fictions about notice to paper over that structural unfairness.