Part 5 Additional Mutual Assistance
Additional Mutual Assistance
(relating to Article 93 para. 1, Article 96 para. 1 and 2 of the Rome Statute)
(1) Subject to § 58 para. 2, additional mutual assistance shall be provided to the Court upon request in accordance with the Rome Statute and this law.
(2) Mutual assistance within the meaning of para. 1 is all support given to the Court in its activities based upon the Rome Statute, independent of whether the mutual assistance is carried out by a court or by a government office.
(3) If the government office responsible for approval of the mutual assistance finds that the prerequisites for provision of mutual assistance exist, the government authority responsible for providing mutual assistance is bound thereto. § 50 remains unaffected.
(4) The treatment of conflicting requests for additional mutual assistance shall be dealt with according to Article 93 para. 9(a) of the Rome Statute. To the extent Article 90 of the Rome Statute applies, § 4 applies mutatis mutandis.
Postponement of Completion
In matters under Article 93 para. 3-5, 9(b), Article 94 para. 1 and Article 95 of the Rome Statute, completion may be postponed until it has been determined how to proceed with the request in accordance with the Rome Statute.
(1) To the extent mutual assistance is to be provided by a public prosecution office, local jurisdiction lies with the public prosecution office in whose district the mutual assistance shall be provided. Should the provision of mutual assistance be required in the districts of different public prosecution offices, jurisdiction lies with the public prosecution office that was first involved in the matter. For as long as jurisdiction under sentence 1 or sentence 2 cannot be determined, jurisdiction is determined by the seat of the federal government.
(2) Para. 1 applies mutatis mutandis to the jurisdiction of the court to the extent judicial action for the provision of mutual assistance is required or when other judicial decisions are to be made.
(3) The Higher Regional Court is responsible for judicial decisions regarding the surrender of property pursuant to § 50 para. 1 sentence 2, for an order of search and seizure of objects (§ 52 para. 1 and 2) and a seizure of assets (§ 52 para. 4), for a decision on detention in the case of a temporary assumption of jurisdiction over a suspect (§ 55 para. 1) and a transfer (§ 55 para. 6) as well as for court orders in the case of telecommunications surveillance (§ 59 para. 1) and for covert measures (§ 59 para. 2). In the case of a temporary assumption of jurisdiction over a suspect, venue lies with the Higher Regional Court in whose district the office that will provide the mutual assistance is located. In the case of a transfer, § 31 para. 2 and 3 apply mutatis mutandis.
(4) Insofar as the jurisdiction of the court is well-founded, the public prosecution office attached to the Higher Regional Court shall prepare the decision and take the measures necessary for its implementation. It is also responsible for ordering and implementing a temporary surrender (§ 54), the preparation of a decision regarding approval of the surrender of objects and the implementation of the approved surrender. In the case of a temporary surrender, local jurisdiction lies with the public prosecution office attached to the Higher Regional Court in whose district the incarceration shall be carried out.
(1) Mutual assistance in cases under § 52 para. 1, 2, and 4, § 55 para. 1 and 6, and § 59 para. 1 and 2, shall only be approved when the Higher Regional Court has issued the required measures for providing the assistance. The Higher Regional Court shall further decide on the permissibility of the surrender of objects upon motion of the public prosecution office attached to the Higher Regional Court or upon motion of one who shows that the surrender will result in injury to his rights. Decisions of the Higher Regional Court are non-appealable.
(2) As to proceedings before the Higher Regional Court, § 20 para. 2 and 3, § 21 para. 1 and 4, §§ 22, 29 para. 4 sentence 2, § 31 para. 1, § 33, as well as the provisions of Chapter 11 of Part One of the Criminal Procedure Code with the exception of §§ 140 – 143 apply mutatis mutandis. For the additional proceedings, § 23 para. 1, 2, and 4, with the exception that instead of the motion of the suspect referred to in § 23 para. 1, the motion of a party affected by measures pursuant to §52 para. 1, 2, or 4 applies, and regardless of the presence of the prerequisites in § 23 para. 1 and 2, also upon the motion of the affected party, a renewed ruling on the provision of the mutual assistance shall be issued, when the affected party is not heard prior to the first time the measures are ordered.
(3) If a court other than the Higher Regional Court is responsible for providing the mutual assistance and finds that the prerequisites for providing mutual assistance are not met, it shall justify its opinion and shall obtain a ruling by the Higher Regional Court. The Higher Regional Court decides further upon a motion by the public prosecution office attached to the Higher Regional Court regarding whether the prerequisites for the provision of mutual assistance have been met. The mutual assistance shall not be approved when the Higher Regional Court has ruled that the prerequisites for the provision of mutual assistance have not been met. The ruling by the Higher Regional Court is binding on the courts and governmental authorities responsible for the provision of mutual assistance.
(4) As to proceedings before the Higher Regional Court, § 20 para. 2 and 3, § 21 para. 1 and 4, §§ 22, 23 para. 1, 2, and 4, § 29 para. 4 sentence 2, § 31 para. 1, §33, as well as the provisions of Chapter 11 of Part One of the Criminal Procedure Code, with the exception of §§ 140 – 143, apply mutatis mutandis.
Surrender of Objects
(1) Notwithstanding the provision of § 58 para. 3, objects will be surrendered upon request of a responsible office of the Court:
1. if they may be used as evidence in proceedings before the Court,
2. if they could have been obtained by a suspect or participant directly or indirectly from an act that is within the jurisdiction of the Court or as compensation for such an object.
(2) Surrender is permissible when:
1. a decision of an office of the Court responsible therefore is presented that orders the seizure of the objects or the freezing within the meaning of Article 93 para. 1(k) of the Rome Statute, and
2. it is guaranteed that the rights of third parties remain unaffected and with the
proviso that surrendered objects shall be promptly returned upon request.
(3) To the extent that objects to be surrendered contain personal data of the suspect, upon surrender it shall be indicated that the data may only be used to fulfill the duties of the Court as set forth in the Rome Statue. If personal data of third parties is so connected to the personal data of the suspect that separation is not possible or is possible only with unjustifiable effort, the transfer of this data is also permissible, as long as the justified interests of the suspect or a third party to their secrecy is not apparently greater.
Search and Seizure, Asset Seizure
(1) Objects, the surrender of which to the Court is under consideration, may be seized or otherwise secured even prior to receipt of the request for release. To this end, a search may also be undertaken.
(2) Objects may, under the prerequisites set forth in § 51 para. 1 number 1, also be seized or otherwise secured when necessary for the fulfillment of a request that is not directed at the surrender of the object. Para. 1 sentence 2 applies mutatis mutandis.
(3) Notwithstanding the provisions of § 49 para. 3 and 4, when there is imminent danger the public prosecution office and its auxiliary officials (§ 152 Judicature Act) are authorized to order search and seizure in accordance with the provisions of the Criminal Procedure Code.
(4) Regardless of the existence of the prerequisites of § 51 para. 1 number 1 or 2, upon request of the Court, property located within Germany or individual objects of property of an affected party against whom the charge (Anklage) confirms (Article 61 of the Rome Statute) a criminal act within Article 5 of the Rome Statute or against whom an arrest warrant has been issued (Article 58 of the Rome Statute) may be seized or attached. § 51 para. 2 number 1 applies mutatis mutandis. Seizure includes property that is later received by the accused. Para. 1 sentence 2 applies mutatis mutandis.
(5) Notwithstanding the provisions in § 49 para. 3 and 4, when there is imminent danger the public prosecution office may issue a provisional order of seizure pursuant to para. 4. The provisional order under sentence 1 becomes ineffective when it is not confirmed by the court within three days.
(6) Seizure pursuant to para. 4 shall be revoked upon request of the Court, at the latest, however, after the court that ordered the seizure has learned that the arrest warrant was revoked or that the proceeding was ended in the first instance. §§ 291, 292, and 293 para. 2 of the Criminal Procedure Code apply mutatis mutandis to seizures pursuant to para. 4 or para. 5.
Personal Appearance of Witnesses
(1) Should the Court request the personal appearance of a person who is at large in Germany as a witness for questioning, for confrontation, or for inspection by the court, it may be ordered via a summons from a German court or a German public prosecution office.
(2) To the extent the Court assures a person that their testimony will not be used, the information from the person within the scope of the assurance of the Court shall not be used in a German criminal proceeding without the permission of the person. Testimony before the Court also may not be used in a German criminal proceeding without the permission of the person when the person was under a duty to provide information to the Court but under German law could have refused to provide such information.
(relating to Article 93 para. 1 and 7 of the Rome Statute)
A person in Germany who is in pretrial detention or imprisoned or is in detention based upon an order regarding measures for the prevention of crime and the reformation of offenders (Maßregel der Besserung und Sicherung) shall be, upon request of the Court, temporarily surrendered to the Court or the authorities of a state designated by the Court for a different investigation there, for the taking of evidence in a proceeding pending against another, or for another objective foreseen in Article 93 para. 7(a) sentence 1 of the Rome Statute when:
1. after instruction set forth on the court record by a judge of the District Court in
whose district the institution where is in custody is located, he declares his
2. there is no expectation that as a result of the surrender the objective of the
criminal proceeding or the execution of the sentence will be impaired,
3. it is ensured that the affected party, during the time of his surrender, with the
exception of measures based upon criminal acts under Articles 70 and 71 of
the Rome Statute, shall not be punished, nor subjected to another penalty, nor
pursued by measures that could not also have been taken in his absence, and
that in case of his release, he may leave the guest state or the state
designated by the Court, and
4. it is ensured that the affected party will be returned promptly after the taking of
evidence, unless that has been waived.
Agreement (sentence 1 number 1) may not be retracted. The detention served due to the surrender shall be set-off against the detention to be served in Germany. § 27 para. 4 applies mutatis mutandis. This does not apply to detentions based upon Article 70 para. 3 of the Rome Statute that have been imposed by the Court and are to be enforced.
Temporary Assumption of Jurisdiction and Transfer
(1) Persons outside the area in which this law is in force who are in detention or imprisoned or are in custody based upon an order imposing deprivation of liberty, shall be temporarily transferred upon request of the Court for an investigation taking place there or for the taking of evidence within the area of applicability of this law in a proceeding pending there and returned at an agreed point in time or upon request of the Court, except in the case where the Court waives the return, when it is guaranteed that the transferee, in the case of a waiver of return surrender by the Court, will be taken in by a foreign state. Prior to implementation of the temporary assumption of jurisdiction over the affected party, arrest shall be ordered in writing when the Court so requests or the return surrender could not otherwise be guaranteed.
(2) The arrest warrant shall contain:
1. the affected party,
2. the request for the taking of evidence in the presence of the affected party,
3. the information of the Court to the office to which the return surrender will
occur, as well as
4. the reason for arrest.
§ 13 para. 3, § 14 para. 1, 2 sentence 1 and 3, para. 5 as well as § 18 apply mutatis
(3) The arrest warrant shall be rescinded when:
1. the Court provides notice that detention is no longer necessary,
2. the Court gives its consent pursuant to para. 2 sentence 2,
3. the affected party shall be returned to the Court or to a state designated by the
4. the Court has waived return surrender.
(4) The Higher Regional Court shall rule on objections of the affected party against the arrest warrant for transfer or against its execution. With agreement of the Court, the Higher Regional Court may revoke the arrest warrant for transfer or suspend it. § 116 para. 1 sentence 2, para. 4, §§ 116a, 123, and 124 para. 1, 2 sentence 1, para. 3 of the Criminal Procedure Code apply mutatis mutandis. If the Court does not agree to a revocation or quashing performance of the arrest warrant for surrender, the affected party shall promptly be returned to the Court or the authorities of a state designated by it. The affected party shall remain in custody throughout the completion of the return surrender.
(5) The Higher Regional Court shall rule regarding the continuation of the detention for transfer when the suspect has been in custody for a total of two months based upon an arrest warrant for transfer. Review of the order shall be repeated every two months. The Higher Regional Court may order that the review of the order shall take place within a shorter timeframe. Para. 4 sentences 2 – 5 apply mutatis mutandis.
(6) Persons outside the area in which this law is in force who are in detention or imprisoned or are in custody based upon an order imposing deprivation of liberty, shall be, upon request of the Court, brought for an investigation taking place against another there or for the taking of evidence within the area of applicability of this law in a proceeding pending against another and returned after the taking of evidence. Para. 1 sentence 2 as well as para. 2 – 5 apply mutatis mutandis with the exception that instead of the deadline in para. 5 of two months, a deadline of one month applies. In addition, § 14 para. 5, §§ 18, 20 para. 2, § 37 para. 4 and 5 sentence 1, 2 and 4 apply mutatis mutandis.
Protection of Persons
(relating to Article 93 para. 1(j) of the Rome Statute)
The provisions regarding protection of victims of criminal acts and protection of persons who participate in a German criminal proceeding apply mutatis mutandis to a party allegedly injured by a criminal act subject to the jurisdiction of the Court or to a witness in a proceeding before the Court.
Service of Process
(relating to Article 58 para. 7 sentence 4, Article 93 para. 1 (d) of the Rome Statute)
(1) The provisions of the Code of Civil Procedure (Zivilprozessordnung) apply mutatis mutandis to proceedings regarding service of process.
(2) Service of a summons of the Court on the accused in the form of substituted service is not allowed.
Disclosure of Officially Obtained Findings and Information
(1) Upon request of an office of the Court responsible therefore, subject to para. 3, German courts and government offices shall send officially obtained information to the Court within the framework of its jurisdiction, to the extent it would be admissible in a German court or a German public prosecution office for a criminal proceeding, when it is guaranteed that:
1. information from the Federal Central Register (Bundeszentralregister) and
information obtained via telephone surveillance (§ 59 para. 1) or other covert
measures (§ 59 para. 2), shall not be sent to offices outside of the Court, and
2. other findings shall be sent to offices outside of the Court only after prior
agreement of the office responsible pursuant to § 68 para. 1.
With the transmittal of the information, maximum deadlines applicable under German law for the storage of the information as well as that the information sent shall only be used for the fulfillment of the tasks of the Court pursuant to the Rome Statute, shall be indicated in an appropriate manner. Should it become evident that incorrect information or information that should not have been sent was transmitted, the Court shall promptly be notified and corrected information or destruction of the information shall be requested.
(2) Subject to para. 3, information within the meaning of para. 1, with the exception of information from the Federal Central Register, may be transmitted to the Court without a request when the prerequisites set forth in para. 1 sentence 1 are otherwise fulfilled and the transmittal is suitable:
1. to begin a proceeding before the Court.
2. to support a proceeding already begun there, or
3. to prepare a request for mutual assistance of the Court.
Para. 1 sentence 2 and 3 apply mutatis mutandis.
(3) If the Court requests the transmittal of information that a German court or a German governmental authority received from a foreign state or an intergovernmental or supra-national entity with the request that it treat the information confidentially, the information shall not be transmitted to the Court as long as there is no agreement by the originator pursuant to Article 73 sentence 1 of the Rome Statute. The Court shall be informed.
Telecommunications Surveillance and Other Covert Measures
(relating to Article 93 para. 1(l) of the Rome Statute)
(1) The ordering of surveillance of telecommunications (§ 100a of the Criminal Procedure Code) and the transmittal of the information gained therefrom is only permissible when:
1. a decision of a judge of the Court is presented ordering telecommunications
2. the additional prerequisites in the Criminal Procedure Code for the ordering of
measures are met, with the exception that instead of the criminal acts referred
to in § 100a para. 1 sentence 1 of the Criminal Procedure Code, the criminal
acts set forth in Article 5 of the Rome Statute apply, and
3. it is guaranteed that the provisions of the Criminal Procedure Code regarding
the notification of parties affected by the measures (§ 101 para. 1 of the Criminal Procedure Code), regarding the use of the information obtained in other criminal proceedings before the Court (§ 100b para. 5 of the Criminal Procedure Code), and regarding the destruction (§ 100b para. 6 of the Criminal Procedure Code) shall be observed.
(2) Upon request of the Court, the covert measures set forth in § 100c para. 1 of the Criminal Procedure Code shall be ordered. Para. 1 applies mutatis mutandis.
Presence During Mutual Assistance Activities
(relating to Article 99 para. 1 of the Rome Statute)
Members of the Court and authorized representatives thereof, as well as other persons named in a request by the Court, shall, upon request, be allowed to be present during the undertaking of domestic mutual assistance activities; they may raise questions or propose measures. Members of the Court may take notes as well as make sound, photo, or video recordings of the mutual assistance activities. As long as the affected parties agree, sound, photo, and video recordings are allowed even when the prerequisites of the Criminal Procedure Code therefore are not met. Recordings that are made in accordance with sentence 3 shall not be used in a German criminal proceeding.
(relating to Article 3 para. 2 of the Rome Statute)
(1) Upon request of the Court, the conduct of court hearings in Germany will be allowed.
(2) As to the enforcement of a monetary fine pursuant to Article 71 para. 1 of the Rome Statute, § 43 applies mutatis mutandis.
Direct Action by the Court
(relating to Article 99 para. 4(b) of the Rome Statute)
Upon special request and upon agreement with the responsible German authorities, members of the Court and authorized representatives thereof shall be permitted to independently conduct questioning, inspections, and similar evidence gathering in Germany. Mutual assistance may be approved under the conditions within the meaning of Article 99 para. 4(b) of the Rome Statute. The ordering and implementation of compulsory measures are in all cases reserved for the responsible German authorities and shall be carried out in accordance with German law.
Commencement of a German Criminal Proceeding
(relating to Article 70 para. 4 of the Rome Statute)
If the Court requests the commencement of a criminal proceeding pursuant to Article 70 para. 4(b) of the Rome Statute against a person suspected of an offense set forth in Article 70 para. 1 of the Rome Statute, the Court shall be informed as soon as possible of the activities undertaken based upon the request. Upon completion of the proceedings, it shall be sent a copy or a certified copy of the final decision. Remaining objects and files shall be returned, provided that the Court so requests.
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.
(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.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.