TITLE II
Extradition from Austria
Chapter ONE
Admissibility of Extradition
Surrender of Objects
§ 25. (1) In connection with an extradition, it shall be admissible to surrender objects that may be used as evidence or which the person to be extradited has obtained from the punishable act or from realizing objects originating from said act.
(2) If an extradition cannot be granted that would be admissible pursuant to the provisions of this federal law, because the person to be extradited has absconded or is deceased or could not be apprehended in Austria, objects may nevertheless be surrendered on the basis of a request for extradition or a separate request.
(3) The surrender of objects for the purposes of evidence may be granted with the proviso that these objects will be returned immediately on request.
(4) Surrender shall be inadmissible in any event if there is reason to suspect that it would frustrate or disproportionately complicate prosecution or the exercise of rights of third parties.
TITLE IV
Judicial Assistance to Foreign Countries
CHAPTER ONE
Requirements
General Principle
§ 50. (1) In accordance with the provisions of this federal law, judicial assistance may be granted in criminal matters upon a request by a foreign authority, including proceedings to order preventive measures and to issue a property-law order, as well as in matters of extinction and the register of criminal records, in proceedings to obtain compensation for confinement and conviction by a criminal
court, in clemency petition matters and in matters concerning the execution of sentences and measures. With the proviso of § 59a, the transfer of data to a foreign authority shall be admissible without such a request.
(2) An authority within the meaning of paragraph (1) shall be a court, a public prosecutor's office, or an agency concerning the execution of sentences or measures.
(3) Judicial assistance within the meaning of paragraph (1) shall be any support that is provided in connection with foreign proceedings in a criminal-law matter. It. also includes consenting to activities as part of cross-border observations on the basis of intergovernmental agreements.
TITLE IV
Judicial Assistance to Foreign Countries
CHAPTER ONE
Requirements
Sending of Objects and Case Files
§ 52. (1) Objects or case files may only be sent if it is ensured that they will be returned as soon as possible. The return of sent objects may be waived if these are no longer required.
(2) Objects to which the Republic of Austria or third parties hold a title may only be sent with the proviso that these rights remain unaffected. It shall not be admissible to send objects and case files if there is reason for concern that this would frustrate or render disproportionately complicated the prosecution or realization of these rights.
(3) Sending objects or case files should be deferred for as long as these are required for court or administrative proceedings pending in Austria.
TITLE IV
Judicial Assistance to Foreign Countries
CHAPTER ONE
Requirements
Transferring Detained Persons for the Evidence Purposes
§ 54. (1) Upon a request by a foreign authority, a person who is being kept in pre-trial detention or punitive detention or who is being kept detained for the execution of measures, may be transferred to a foreign country in order to perform important investigative measures or evidence-taking, especially for the purposes of examining or confronting him/her, if
1. the person agrees to this transfer,
2. his/her presence is not required for criminal proceedings pending in Austria
3. his/her detention is not prolonged on account of the transfer, and
4. the requesting State ensures to keep him/her in custody, to return him/her without delay after the investigative measure or evidence-taking has been completed, as well as not to prosecute or punish him/her for an act committed prior to the transfer.
(2) A transfer shall not interrupt the serving of pre-trial or punitive detention or the execution of a preventive measure.
CHAPTER TWO
Competences and Procedure
Competences for Processing Requests for Judicial Assistance
§ 55. (1) Notwithstanding paragraphs (2) and (3), the public prosecutor’s office with competences for the court district in which the act of judicial assistance is to be performed shall be responsible for processing a request for judicial assistance. If the request calls for a cross-border observation, the public prosecutor’s officer shall be responsible in whose court district the border is most likely to be crossed. In the case of an observation by an aircraft flying to Austria, however the public prosecutor’s office shall be responsible in whose court district the aircraft is to land. If the competences cannot be determined on the basis of the present provisions, the public prosecutor’s office in Vienna shall be responsible. The stipulations of Title 7 of the Code of Criminal Procedure shall apply in analogy to the processing of requests for judicial assistance.
(1a) Information about main proceedings, as well as about the execution of a custodial sentence or preventive measure shall be provided by the adjudicating court; the same shall apply to the examination of persons and for permitting the use of case files, whenever that a bill of indictment has already been filed with an Austrian court and the subject of the request for judicial assistance is connected to the Austrian proceedings. In this case, a single judge shall conduct the examination (§ 31 (1) item 1 of the Code of Criminal Procedure).
(2) If a person to be transferred is being kept in punitive detention or is undergoing the execution of a measure, a single judge of the court indicated in § 16 of the Execution of Punishments Act shall decide about the request for transfer, or else the court that ordered the detention. The Federal Ministry of Justice shall be informed of the decision. The Federal Minister of Justice shall refuse the transfer if one of the circumstances listed in § 2 and § 3 (1) prevails. Transfer to the respective border crossing or any other agreed transfer site shall be performed by court prison guards.
(3) If a person detained in another State is to be transferred through the territory of the Republic of Austria to a third State for important investigative measures or the taking of evidence, especially for the purpose of examination or confrontation, § 44, § 47 and § 49 shall apply in analogy.
TITLE IV
Judicial Assistance to Foreign Countries
CHAPTER TWO
Competences and Procedure
Admitting Foreign Agencies and Persons Involved in the Proceedings to Acts of Judicial Assistance
§ 59. (1) It shall not be admissible that foreign agencies perform investigations and procedural steps on the territory of the Republic of Austria under this federal law. However, the competent foreign judge, public prosecutor and other persons involved in proceedings, as well as their legal counsels shall be permitted to attend and to participate in acts of judicial assistance if this appears to be necessary for the
appropriate processing of the request for judicial assistance. The approval of the Federal Minister of Justice shall be obtained for the service operations by foreign agencies required in this context, except for cross-border observations.
(2) Persons who were allowed to attend acts of judicial assistance pursuant to paragraph (1) must not be prosecuted, punished or restricted in their personal liberty during their stay in Austria for an act committed prior to their entry to Austria. It shall, however, be admissible to prosecute, punish or restrict the personal liberty of such persons
1. if the person admitted to attend the act of judicial assistance remains on the territory of the Republic of Austria for more than fifteen days after the act of judicial assistance has been completed, although he/she was in a position and allowed to leave it, or
2. if, after leaving the territory of the Republic of Austria, he/she return at his/her own accord, or is lawfully returned.
(3) If a person who is allowed to attend an act of judicial assistance is being detained in the foreign country, he/she may be taken over at the request of the other State if the detention is based on a conviction by a competent court, or if there is a reason for detention that is also recognized under Austrian law. The transferred person shall be kept detained in Austria and be returned without delay after of the act of judicial assistance has been completed.
TITLE V
Taking Over the Prosecution of a Case and Surveillance; Execution of Foreign Criminal-Court Decisions
CHAPTER ONE
Taking Over the Prosecution of a Case
Competences and Procedures
§ 60. (1) Requests for taking over the prosecution of a case shall be examined provisionally by the Federal Ministry of Justice. If the request for the prosecution of a case cannot give rise to any prosecution, the Federal Minister of Justice shall refuse any further consideration of the request; otherwise, the Federal Minister of Justice shall refer the request to the responsible public prosecutor’s office. At any stage of the proceedings the Federal Minister of Justice may demand – either at his/her own initiative or upon an application by the public prosecutor’s office – from the State requesting the prosecution of a case to provide additional documents. The Federal Minister of Justice shall inform the requesting State about the dispositions taken and about the result of criminal proceedings.
(2) If criminal proceedings are to be taken over, but local jurisdiction cannot be determined, the public prosecutor’s office in Vienna shall be responsible.
(3) If Austrian jurisdiction is based exclusively upon an intergovernmental agreement, the public prosecutor’s office shall examine the person concerned on the prerequisites for taking over the prosecution of a case.
CHAPTER TWO
Taking over Surveillance Operations
Prerequisites
§ 61. Upon request by another State, the surveillance of a person shall be admissible, who was convicted by a foreign court with final and enforceable effect, when imposing a punishment has been deferred on condition, or when a punishment or preventive measure was suspended on probation, or when the person was released on condition from a custodial sentence or a preventive measure involving deprivation of liberty, provided that
1. the decision of the foreign court was taken in proceedings that complied with the principles set forth in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette No. 210/1958,
2. the conviction was for an act that is subject to a court punishment under Austrian law,
3. the conviction was not for one of the punishable acts listed in § 14 and § 15,
4. the convicted person is not prosecuted for the act in Austria, was not exempted from prosecution for convicted or acquitted with final and enforceable effect or otherwise it in Austria,
5. the convicted person has his/her domicile or place of residence is Austria.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.