Extradition from Austria
Jurisdiction and Procedure
Deferral of Surrender
§ 37. Upon application by the person concerned or the public prosecutor or ex officio the court shall defer the surrender if
1. the person to be extradited is not fit for being transported or
2. the public prosecutor or a court conducts criminal proceedings against the person to be extradited, he/she is being kept in pre-trial detention by the fiscal authorities, or an imposed custodial sentence or preventive measure is to be enforced concerning the person to be extradited. In case of an exemption from prosecution or execution on account of the extradition (§ 192 (1) item 2 of the Code of Criminal Procedure; § 4 and § 157 of the Execution of Punishments Act), the court shall perform the surrender without delay.
Use of Air Transport
§ 46. (1) Consent for a transit shall not be required if air transport is to be used and no stop-over on the territory of the Republic of Austria is planned. In that case, it shall suffice that the requesting State confirms that the person to be transited is not an Austrian citizen, that he/she will not be transited for one of the punishable acts listed in § 14 and § 15 item 1 and that one of the documents indicated in § 48 (1) is available.
(2) If a flight cannot be continued without delay, in the event of an unplanned stop-over, the notice on the use of air transport shall be regarded as a request for imposing detention pending extradition.
Custody pending surrender, surrender and transit
26. Custody pending surrender and orders for surrender
1. In the event of a request from the International Criminal Court for the arrest and surrender of an accused person, on application by the public prosecutor, the investigating judge shall initiate the surrender procedure and order the arrest of the accused person, his or her custody pending surrender and, in accordance with the following paragraphs, his or her surrender to the International Criminal Court. The investigating judge shall not have competence to consider the allegations giving rise to the arrest warrant or the grounds therefor.