Competing request

Austria

Austria - Agreement ICC on the Enforcement of Sentences 2005

Article 10
Rule of speciality

3. In the event of a request for extradition made by a third State, Austria shall transmit the entire request to the Presidency with a protocol containing the views of the sentenced person obtained after informing the person sufficiently about the extradition request.
4. The Presidency may, in relation to paragraphs 2 and 3 of this article, request any document or additional information from Austria or the third State requesting the extradition.
5. The Presidency shall make a determination as soon as possible and shall inform the requesting State accordingly. If the request submitted under paragraphs 2 and 3 of this article concerns the enforcement of a sentence, the sentenced person may serve that sentence in Austria or be extradited to a third State only after having served the full sentence pronounced by the Court.
6. Paragraph 1 of this article shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of Austria after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it.
7. The Presidency may authorise the temporary extradition of the sentenced person to a third State for prosecution only if it has obtained assurances which it deems to be sufficient that the sentenced person will be kept in custody in the third State and transferred back to Austria, after the prosecution.

Austria - Federal Law on Cooperation with the ICC (EN) 2002

Part 2
Specific provisions
Section 4
Custody pending surrender, surrender and transit

29. Competing requests
1. Should the Republic of Austria receive a request for surrender from the International Criminal Court and a request for extradition from another State in respect of the same person, the Federal Minister of Justice shall decide which request is given priority pursuant to article 90 of the Statute.
2. Should the Federal Minister of Justice give priority to a request for extradition from another State over a request for surrender from the International Criminal Court, and the request for extradition is subsequently rejected or withdrawn, the International Criminal Court shall be notified of this without delay.

Rome Statute

Article 90 Competing requests

1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.

2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.

3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis.

4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible.

5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.

6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

(a) The respective dates of the requests;

(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

(c) The possibility of subsequent surrender between the Court and the requesting State.

7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender:

(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;

(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.

Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.