Chapter II
European Arrest Warrant and Surrender Procedures between Member States
Part Three
Procedure for Approval of Surrender
Postponing the Surrender
§ 25. (1) The court shall postpone the surrender upon application by the person concerned, by the public prosecutor or ex officio if
1. the person concerned is not in a position to be transported, or if there are serious reasons for presuming that implementing the surrender might constitute a risk to the life and limb of the person concerned,
Chapter II
European Arrest Warrant and Surrender Procedures between Member States
Part Five
Transit
Admissibility of Transit
§ 32. (1) The transit of a person through the territory of the Republic of Austria to a Member State shall be granted on the basis of a previously filed request.
(2) No permission shall be required for a transit, if the air route is to be used and a stop-over on the territory of the Republic of Austria is not planned. In the case of a non-scheduled stop-over, transit shall be granted on the basis of a request to be issued by the issuing State.
(3) A title to serve a punishment in Austria concerning the person to be transited shall not oppose a transit. However, in this case the public prosecutor shall examine whether there is reason to request a further surrender or the extradition of the person to be transited, or to request the issuing State for taking over the criminal prosecution.
(4) The provisions on transit shall apply in analogy to requests for the transit transport of persons over the territory of the Republic of Austria to a Member State for the purpose of taking over the criminal prosecution.
Transit of Austrian Nationals
§ 33. (Constitutional Provision) (1) The transit of Austrian nationals through the territory of the Republic of Austria shall only be admissible pursuant to the provisions of the present federal law.
(2) The transit of Austrian nationals for the purpose of enforcing a custodial sentence or preventive measure involving deprivation of liberty shall be inadmissible.
(3) The transit of Austrian nationals shall always take place on the condition that the Austrian national is returned to Austria after having been granted to be heard in court on the enforcement of a custodial sentence or preventive measure involving deprivation of liberty, issued by a court of the issuing State.
Chapter II
European Arrest Warrant and Surrender Procedures between Member States
Part Five
Transit
Decision of Transit
§ 35. The Federal Minister of Justice, in agreement with the Federal Minister of the Interior, shall decide on the transit. He shall communicate his decision directly to the requesting authority.
Obtaining a Transit
§ 36. (1) If there is reason for a transit through a Member State, on the basis of an Austrian European arrest warrant, the court or the office of public prosecution shall communicate the documents listed in § 34 to the competent authority of that Member State with the request to grant consent. The Federal Minister of Justice shall proclaim, by way of ordinance, a list of the authorities in the Member States
with competences for receiving requests for transit.
(2) If there is reason to request a Member States for the transit of a person from a third country, on the basis of a request for extradition, the documents listed in § 34 shall be transmitted to the Federal Ministry of Justice in order to obtain the transit.
Costs of Transit
§ 37. The requesting Member State shall demand reimbursement of the costs of a transit through the territory of the Republic of Austria only if that State were not to bear the expenses of an equivalent Austrian request. In case of doubt, the Federal Minister of Justice shall provide information in this context.
(a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.