TITLE II
Extradition from Austria
CHAPTER TWO
Jurisdiction and Procedure
Detention Pending Extradition
§ 29. (1) Detention pending extradition may only be imposed or continued if there are sufficient grounds to assume that a person apprehended in Austria has committed a punishable act that qualifies for extradition. The provisions governing pre-trial detention shall be applied in analogy to detention pending extradition, unless the provisions of this federal law stipulate otherwise.
(2) Detention pending extradition may not be imposed or maintained if the purposes of said detention may be achieved by way of pre-trial detention, imposed by a court at the same time, or by way of punitive custody. The public prosecutor shall order the departure from imposing pre-trial detention or punitive custody, which is indispensable for the purposes of the extradition proceedings. If the purposes of detention cannot be achieved by way of imposing punitive custody at the same time, or if the extradition proceedings were to be considerably complicated by maintaining punitive custody, the court shall impose detention pending extradition. In this case, the execution of the sentence is interrupted. Allowance shall be made for the period of detention served pending extradition when determining the interrupted period of punitive custody.
(3) Prior to a decision imposing detention pending extradition, the person concerned shall be informed of the charges against him/her and shall also be informed that it is in his/her discretion to make a statement, or not to give evidence on the matter and to first consult a defender counsel. The person concerned shall also be informed of his/her right to apply for the holding of a hearing on the admissibility of the extradition. If the person has been arrested and does not yet have a defender counsel, § 59 StPO shall be applied.
(4) If detention pending extradition is imposed on a person who is not represented by a defender counsel, such a defender counsel shall be assigned to this person directly (§ 61 (1) item 1 of the Code of Criminal Procedure). § 61 (2) to (4) and § 62 of the Code of Criminal Procedure shall be applied in analogy.
(5) The effectiveness of the most recently taken decision imposing or continuing detention pending extradition shall no longer be limited by the detention period if and as soon as the person concerned states his/her consent to the simplified extradition procedure (§ 32) or if the court decides that extradition is admissible (§ 31): there are not further ex officio hearings on the detention after that date.
(6) The person concerned shall be released in any event if he/she has already spent one year in detention pending extradition, without the Federal Minister of Justice granting or refusing extradition (§ 34). The period of detention pending extradition may only be maintained for more than six months if this is unavoidable due to the specific difficulties or the special scope of the proceedings, and if the punishable act underlying the extradition is a crime (§ 17 of the Criminal Law Code).
TITLE II
Extradition from Austria
CHAPTER TWO
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.
1. In respect of an investigation under this Statute, a person:
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.
(c) A person being transported shall be detained in custody during the period of transit;
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be unimpeded and confidential.