Competing request - same conduct


Austria - Extradition and Mutual Assistance (EN/DE) 1979 (2020)

Extradition from Austria

Chapter ONE
Admissibility of Extradition

Austrian Jurisdiction
§ 16. (2)
2. precedence shall be given to conducting the criminal proceedings in the requesting State, taking special circumstances into account, particularly reasons of ascertaining the truth, of determining or executing a punishment.

Obtaining Extradition, Transit, Delivery, Judicial Assistance, as well as Taking Over the Prosecution of a Case, Surveillance and Execution

Obtaining the Taking Over of the Prosecution of a Case, a Surveillance, as well as the Execution of Criminal-Law Convictions by Foreign Countries

Obtaining the Taking Over of the Prosecution of a Case
§ 74. (1) The Federal Minister of Justice may request another State to initiate criminal proceedings against a person for a punishable act that is subject to Austrian jurisdiction if the jurisdiction of that State appears to be justified and
1. the extradition of a person staying abroad cannot be obtained, or obtaining an extradition is waived for another reason, or
2. it is expedient to adjudicate a person staying in Austria in the other State on account of an interest in ascertaining the truth or for reasons of determining the punishment, or performing the execution, and whenever this person is extradited for another punishable act, or it is to be otherwise assumed that the criminal proceedings in the other State will be conducted in the presence of this person.

(2) If the taking over of the prosecution of a case is to be obtained, the public prosecutor shall report this to the Federal Ministry of Justice, attaching the required documents of the case.

(3) A request pursuant to paragraph (1) shall not be admissible if there is reason for concern that the person would be exposed to a drawback for one of the reasons listed in § 19, or if the punishable act is sanctioned by the death penalty in the requested State.

(4) After receipt of the notice that the requested State has taken over the prosecution of a case, the criminal proceedings in Austria may be suspended for the time being. If the offender has been convicted with final and enforceable effect by the foreign court and if the punishment has been executed in full or has been remitted as far as it has not been executed, the proceedings in Austria shall be discontinued.

(5) Prior to a request for taking over the prosecution of a case, the accused shall be heard if he/she is staying in Austria.

Austria - Federal law on judicial cooperation in criminal matters with the Member States of the European Union (EN/DE) 2004 (2020)

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

European Arrest Warrants by Several Member States
§ 22. (1) If two or several Member States request the execution of a European arrest warrant against one and the same person, the court shall take a decision, considering all circumstances, which European arrest warrant shall be given priority. These circumstances shall include, in particular, the gravity of the act, the place of the offence, the time at which the European arrest warrant was issued, as well as the circumstance whether the arrest warrant was issued for conducting criminal prosecution or for enforcing a custodial sentence or a preventive measure involving deprivation of liberty. An opinion by Euro-just may be obtained prior to taking a decision.

Rome Statute

Article 90 Competing requests

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.