Article 18
Costs
1. The ordinary costs for the enforcement of the sentence in the territory of Austria shall be borne by Austria.
2. Other costs, including those for the transport of the sentenced person to and from the seat of the Court and those of any expert opinion or report requested by the Court, shall be borne by the Court.
3. In case of escape, the costs associated with the surrender of the sentenced person shall be borne by the Court if no State assumes responsibility for them.
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 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.
Chapter II
European Arrest Warrant and Surrender Procedures between Member States
Part Three
Procedure for Approval of Surrender
Launching a Surrender Procedure
§ 16. (1) The public prosecutor shall launch a surrender procedure, if a request for surrender by a Member State is received, or if it can be presumed, on the basis of specific facts that a person is staying in Austria, for whom a European arrest warrant has been issued, or that an alert for his/her apprehension has been issued under the Schengen Information System. The issuing judicial authority shall be requested to submit a European arrest warrant if the sought person is staying in Austria.
(2) In all other cases, the Federal Ministry of the Interior shall verify whether requests by other Member States for the surrender of a person, which were received by way of an automation-supported search system, by way of the International Criminal Police Organisation (INTERPOL), or by some other way of official criminal-police assistance, give rise to trigger an alert in the search instruments for his/her exploration, for the purpose of apprehending that person and committing him/her to the prison of the competent court.
Chapter II
European Arrest Warrant and Surrender Procedures between Member States
Part Three
Procedure for Approval of Surrender
Offer to Surrender
§ 17. (1) The public prosecutor shall verify, also when no European arrest warrant has been received, whether there are grounds for an offer to surrender a person apprehended in Austria to the Member State concerned if – on the basis of specific facts – it must be presumed that he/she has committed acts that are subject to the execution of such an arrest warrant.
(2) If there are grounds for offering the surrender, the public prosecutor shall apply for the launching of a surrender procedure, for the examination of the person concerned by the court and for addressing an inquiry to the judicial authority of the Member State in question.
(3) Upon application by the public prosecutor pursuant to § 18, the court shall impose detention pending surrender upon the person concerned, applying the provisions of § 29 of the ARHG in analogy, unless this appears to be inadmissible, and inquire from the judicial authority of the Member State concerned, enclosing a presentation of the facts, whether a European arrest warrant will be issued against the person concerned. A reasonable time limit shall be set for issuing such an arrest warrant, indicating that, when the time limit expires without any reaction being received, a renunciation of the surrender will be presumed, and the person concerned will be released. The time limit must never exceed 40 days, as of the apprehension of the person concerned. When the time limit expires without any reaction, the
person concerned shall be released without delay, unless the public prosecutor applies immediately that pre-trial detention be imposed upon the person concerned.
Detention Pending Surrender
§ 18. (1) A European arrest warrant or an alert pursuant to Article 95 of the Schengen Agreement Application Convention (SAAC), Federal Law Gazette III No. 90/1997, shall be deemed to be a request for implementing a surrender procedure and imposing detention pending surrender.
(2) The provisions on detention pending extradition pursuant to § 29 of the ARHG shall apply in analogy to detention pending surrender.
Chapter II
European Arrest Warrant and Surrender Procedures between Member States
Part Three
Procedure for Approval of Surrender
Executing the Surrender
§ 24. (4) In connection with the execution of a European arrest warrant, objects shall be handed over pursuant to § 25 and § 41 of the ARHG, to the extent that these items are not personal belongings of the person concerned. If objects located in Austria are subject to confiscation or forfeiture, these objects may only be handed over to the issuing State on the condition that they will be returned at the latest and free of charge, after the criminal proceedings have been finished.
Chapter II
European Arrest Warrant and Surrender Procedures between Member States
Part Four
Obtaining the Execution of a European Arrest Warrant
Search
§ 29. (1) The public prosecutor shall order the apprehension by way of a European arrest warrant authorized by a court, and, if necessary, arrange for an alert of the requested person in the Schengen Information System, pursuant to Article 95 of the SAAC, through the channels of the competent security authorities, if there is reason to launch a search for the apprehension of the requested person in at least one of the Member States. If it is not possible for an alert in the Schengen Information System to obtain a search in all Member States, the services of the International Criminal Police Organization (INTERPOL) shall also be used.
(2) The public prosecutor shall communicate the European arrest warrant directly to the competent executing judicial authority, if the whereabouts of the requested person in a Member State are known, or if there are certain indications for such whereabouts.
(2a) After filing the formal letter of accusation with the court the arrest on the basis of a European arrest warrant is to be ordered by the court on application of the office of public prosecution. The court in such cases also has to forward the European arrest warrant to the competent execution authority.
(3) If a Member State – in executing a European arrest warrant, which an Austrian judicial authority issues against a person who is a national of that Member State or has his/her domicile or permanent residence in that Member State – requires a guarantee that the person concerned will be returned for the enforcement of a custodial sentence or a preventive measure involving deprivation of liberty, imposed
by the Austrian court, after having been heard, the court shall give that guarantee, upon an application by the public prosecutor, if there is continued reason to execute the European arrest warrant in that Member State. The guarantee shall be binding for the Austrian judicial authorities.
Chapter III
Recognition and Enforcement of Judicial Decisions
Part Two
Execution of Decisions on Seizure by Member States
Prerequisites
§ 45. (1) With regard to the relation with Danmark and Ireland a decision on seizure of means of evidence can be taken or executed because of criminal acts carrying court punishment according to the law of the deciding State and, subject to the provision of para. 3, according to the law of the executing State.
(2) With regard to the relation with all other Member States of the European Union a decision on the freezing of property that might subsequently become subject to an order relating to property rights may be issued or executed because of criminal acts that allow freezing according to the law of the deciding State and of the executing State.
(3) For a decision pursuant to para. 1 or 2 double criminality need not be verified if the offence underlying the freezing order was assigned to one of the categories of offences listed in Annex I and carries a maximum custodial sentence of at least three years according to the law of the issuing State.
(4) The freezing order will only be executed if it is accompanied by a certificate in the form shown in Annex III. If the certificate is incomplete, or if it obviously does not correspond to the freezing order, the issuing judicial authority may be set a time limit for completing or correcting the information, if the available documents are not sufficient for a decision on the execution of the freezing order.
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.