TITLE I
General Provisions
General Reservation
§ 2. A foreign request may only be complied if this does not violate public order or other essential interests of the Republic of Austria.
TITLE II
Extradition from Austria
CHAPTER TWO
Jurisdiction and Procedure
Searches
§ 27. (1) Requests received for imposing detention pending extradition shall be examined by the public prosecutor in order to establish whether there are sufficient grounds to assume that the underlying act gives rise to an extradition. If these prerequisites are met, the public prosecutor’s office shall order the search measures stipulated in Title 9 of the Code of Criminal Procedure or, if necessary, order the arrest of the sought person.
(2) A public prosecutor need not be seized in connection with a request received by way of a computer-assisted search system, by way of the International Criminal Police Organization – INTERPOL – or by way of any other official international criminal police assistance system if there are no grounds to assume that the sought person is staying in Austria and if the request only gives rise to search measures that do not require any public announcement (§ 169 (2) second sentence of the Code of Criminal Procedure).
TITLE II
Extradition from Austria
CHAPTER TWO
Jurisdiction and Procedure
Proceedings on the Admissibility of an Extradition
§ 31. (1) The court shall examine the person concerned in connection with the extradition request. § 29 (3) shall apply in analogy. The court shall decide on the admissibility of an extradition by way of a court decision in accordance with § 33.
(2) The decision shall be taken on the basis of a public oral hearing if the person concerned or the public prosecutor so move, or if the court deems it necessary in order to examine the admissibility of the extradition. If the person concerned is kept detained pending extradition, the hearing on the admissibility of the extradition shall take place in the course of a hearing on the detention in accordance with the provisions of paragraph (3). Irrespective of an application to hold a hearing, the court may always state that an extradition is inadmissible without holding a hearing. If the court decides without a hearing, the person concerned and his/her defender counsel, as well as the public prosecutor must have been given an opportunity in any event to comment on the request for extradition.
(3) The person concerned must be represented at the hearing by a defender counsel (§ 61 (1) of the Code of Criminal Procedure). If the person concerned is being detained, steps shall be taken for his/her production in court, unless he/she expressly waived being present in court through his/her defender counsel. § 172 of the Code of Criminal Procedure shall be applied in analogy.
(4) Except for the cases listed in § 229 of the Code of Criminal Procedure, the public may be excluded from the hearing, if this might affect bilateral relations. In the hearing the single judge shall first present a summary of the content of the documents received by the court and the course of the proceedings up to the hearing. The public prosecutor shall then be given leave to speak. Next, the person concerned
and his/her defender counsel shall be given an opportunity to comment on the request for extradition and the statements by the public prosecutor. In any event, the person concerned and his/her defender counsel shall have the right to make the final statement.
(5)The single judge shall proclaim the decision on the admissibility of the extradition and explain the reasons for the decision. The decision shall be issued in writing and shall indicate those facts, in any event, that were decisive for stating that the extradition is admissible or inadmissible.
(6) If, in the event of an oral proclamation of the decision, the person concerned or the public prosecutor files a complaint within three days, the complainant may state further details of the complaint within fourteen days after having received the written copy. The complaint has suspensive effect. The provisions on the proceedings before the appellate court (§ 89 of the Code of Criminal Procedure)
shall apply with the proviso that the higher regional court shall decide on the complaint in a public oral hearing, applying § 294 (5) of the Code of Criminal Procedure in analogy, unless the complaint must be rejected as inadmissible pursuant to § 89 (2) of the Code of Criminal Procedure or unless one of the
circumstances indicated in § 89 para. 2a items 1 to 3 of the Code of Criminal Procedure prevails. The higher regional court shall submit its decision to the Federal Ministry of Justice, attaching the case file.
(7) If no complaint is filed, the court shall submit the case file directly to the Federal Ministry of Justice.
TITLE VI
Obtaining Extradition, Transit, Delivery, Judicial Assistance, as well as Taking Over the Prosecution of a Case, Surveillance and Execution
CHAPTER TWO
Obtaining Judicial Assistance
Prerequisites and Procedures
§ 71. (1) Requests for judicial assistance shall be directed, by way of the established channels of communication, to the foreign court, the foreign public prosecutor’s office, or the authority engaged in the execution of punishments or measures in whose district the act of judicial assistance is to be performed. The request shall comprise the facts underlying the proceedings and other information as required for appropriate processing.
(2) Unless direct judicial assistance exchanges are in place, the Federal Minister of Justice may refrain from forwarding a request for judicial assistance for one of the reasons listed in § 2 and § 3 (1).
Part 2
Specific provisions
Section 2
14. Judicial assistance and procedural provisions for the execution of requests
1. Judicial assistance shall be provided to the International Criminal Court in accordance with the legislation in force governing judicial assistance in criminal matters.
2. Requests from the International Criminal Court for compliance with certain formal provisions shall be executed when these are compatible with the principles of Austrian criminal procedure. Audio and video recording and transmission of the assistance process shall be permitted whenever sought by the International Criminal Court.
3. Members and investigators of the International Criminal Court and others involved in the proceedings and their legal representatives may be authorised, at the Court’s request, to be present at and participate in the assistance process. To this end, they shall be informed of the time and place of the execution of assistance activities.
4. A request from the International Criminal Court for criminal police investigations or information may also be executed without any referral to national courts via the Federal Ministry of the Interior pursuant to Austrian law.
15. Postponement of the execution of requests for assistance
1. The execution of a request for judicial assistance may be postponed:
(1) until there is a decision concerning a challenge of admissibility under articles 17 to 19 of the Statute, unless the International Criminal Court has expressly ordered that the Prosecutor may pursue the collection of evidence pursuant to article 18 or 19 of the Statute;
(2) for a time period agreed upon with the International Criminal Court if the immediate execution of the request would interfere with ongoing investigations or proceedings in a case other than the one to which it relates.
2. Any such postponement shall be decided upon by the Federal Minister of Justice.
3. Prior to any decision on postponement pursuant to paragraph 1(2) above, it shall be ascertained whether the requested assistance could be provided immediately under certain conditions. A request from the International Criminal Court for measures to secure evidence shall still have to be executed in the event of a postponement.
16. Summonses
1. The International Criminal Court shall be authorised to serve directly by post summonses and other documents on persons who are in the Republic of Austria. This shall not preclude service via the Federal Ministry of Justice.
2. The person summoned is not obliged to acquiesce to the summons. At the request of the person summoned, of the accused or of their counsel, the Federal Ministry of Justice shall obtain from the International Criminal Court the assurance that the person shall not be subject to prosecution, arrest or detention on account of an act engaged in prior to the person’s exit from the Republic of Austria.
3. At the request of the International Criminal Court, the Austrian court shall transfer an appropriate advance for travel costs to witnesses and experts summoned by the International Criminal Court who apply for it. Should the witness or expert fail to attend the trial at the International Criminal Court or otherwise fail to fulfil the obligations arising from the summons, such an advance shall be recovered.
17. Questioning of suspects
1. Persons questioned pursuant to a request from the International Criminal Court on suspicion of having committed a crime within its jurisdiction shall, prior thereto, be informed of the crime they are suspected of and of their right to:
(1) remain silent without having to fear that such silence will be taken into consideration in the determination of their guilt or innocence;
(2) be represented by the counsel of their choice, and, where they have no counsel, to be assigned counsel pursuant to paragraph 41(2) of the Code of Criminal Procedure;
(3) be questioned in the presence of counsel, unless they waive this right expressly and voluntarily.
2. Such reference to their rights and the corresponding statement by the persons to be questioned shall be noted in the record. Where the conditions of paragraph 41(2) are fulfilled and the person demands to be questioned in the presence of counsel without any application for assignment of counsel, the procedure in paragraph 41(4) of the Code of Criminal Procedure shall apply.
18. Surrender of prisoners for the purposes of evidence
1. A person in custody in Austria, whether pending trial or serving a sentence, shall at the request of the International Criminal Court be surrendered thereto for the purposes of identification, questioning or comparison or other investigative processes according to conditions to be agreed upon, if the person consents to the surrender.
2. Should the person to be surrendered be in custody on the basis of a request from the International Criminal Court for the enforcement of a sentence pursuant to paragraph 33(1) below, his or her consent to the surrender is not required.
3. The surrender shall not suspend the time spent in custody, whether pending trial or serving a sentence.
19. Disclosure and transmission of information affecting national security
1. (Constitutional provision) At the request of the International Criminal Court, judicial assistance shall be provided through the transmission of objects, documents or photocopies or by granting access to records.
2. Should the documents relate to national security, and in particular to military information, the International Criminal Court shall be consulted to ascertain whether the information can be provided by another source or in another form.
3. If the matter cannot be settled through the consultations in paragraph 2 above, the Federal Minister of Foreign Affairs, with the consent of the competent federal minister, prior to granting access to records or to the transmission of photocopies, shall check whether the interests of confidentiality significantly outweigh the interests of providing evidence for an international prosecution. Should that be the case, the International Criminal Court shall be asked for assurance of the maintenance of confidentiality and for details as to how it will be maintained.
4. The Federal Minister of Foreign Affairs shall, with the consent of the competent federal minister, check whether the assurance given as to maintaining confidentiality is to be deemed sufficient. Access to records or the transmission of photocopies is to be refused where confidentiality cannot be ensured and if there are concerns that disclosure could prejudice national security.
5. Paragraphs 2 to 4 above shall also apply where a person who has been called upon to provide information or evidence refuses to do so on the grounds that disclosure would prejudice national security.
6. Prior to being questioned on the basis of a request for judicial assistance from the International Criminal Court, a person shall be informed of his/her right to refuse to 8
answer in order to prevent the disclosure of confidential information relating to national security. This shall be noted in the record. The admissibility of the request for judicial assistance in such cases shall be decided upon in the light of paragraphs 2 to 4 above.
20. Transmission of photocopies or information from third parties
Should the International Criminal Court seek judicial assistance such as the transmission of photocopies of documents or information which were given to Austria by another State or by an intergovernmental or international organisation subject to their confidentiality, such documents may only be transmitted to the International Criminal Court with their consent. The Court shall be informed of any refusal thereof.
21. Judicial assistance from the International Criminal Court
1. Should criminal proceedings arise before an Austrian court on account of an act constituting a crime within the jurisdiction of the International Criminal Court or any other serious crime under Austrian law, the Court may be asked for judicial assistance.
2. Requests shall be made in writing. The written request and supporting material shall be accompanied by certified translations in English or French.
3. Courts and public prosecutors shall submit requests addressed to the International Criminal Court to the Federal Ministry of Justice for onward transmission.
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
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.