Section 28 Hearing of person pursued

(2) The judge at the local court hears persons pursued about their personal circumstances, in particular nationality. The judge draws their attention to the right to avail themselves of the services of legal counsel (section 40) at any stage of the proceedings and to the fact that they are free to either make a statement or not make a statement regarding the offence of which they are accused. The judge then asks whether and, if so, for what reasons they wish to object to extradition. Persons pursued are only to be heard in respect of the substance of the accusation if the public prosecution office at the higher regional court makes an application to that effect; in all other cases, any information which persons pursued volunteer is to be placed on record.

Section 31 Court hearing

(2) If the person pursued is under arrest, he or she is to be brought before the court, unless he or she has waived the right to be present at the hearing or long distance, illness or other insurmountable obstacles prevent him or her being brought before the court. If the person pursued is not brought before the court for the court hearing, then legal counsel (section 40) must exercise that person’s rights at the hearing. In such cases, a lawyer (Rechtsanwalt) is to be appointed as legal counsel for the court hearing if the person pursued does not yet have legal counsel.

Section 40 Legal counsel

(1) Persons pursued may avail themselves of the services of legal counsel at any stage of the proceedings.

(2) Where persons pursued are arrested, they require the mandatory assistance of legal counsel in the extradition proceedings.

(3) Where persons pursued are not arrested, they require the mandatory assistance of legal counsel in the extradition proceedings if
1. the involvement of legal counsel appears necessary on account of the complexity of the factual or legal situation, in the case of proceedings pursuant to Part 8 Division 2 especially in the case of doubt as to whether the conditions of sections 80 and 81 no. 4 are met,
2. it is clear that they are not in a position to adequately exercise their rights themselves or
3. they are under the age of 18.

(4) If the mandatory assistance of legal counsel is required and the person pursued has not yet mandated legal counsel, then legal counsel is to be appointed for the person pursued upon application or ex officio. If the person pursued has no legal counsel, then, in the cases referred to in subsection (3) no. 1 and no. 2, upon disclosure of the request, the person pursued is to be instructed about the right to apply for legal counsel to be appointed.

(5)  Legal counsel is appointed ex officio
1. in the case under subsection (2): without delay following arrest,
2. in the case under subsection (3) no. 3: without delay following disclosure of the request for extradition,
3. in the cases under subsection (3) no. 1 and no. 2: following disclosure of the request for extradition as soon as the conditions set out therein are met.

(6)  It is for that court before which the person pursued is to be brought or would have to be brought to give a decision on the appointment. After an application is made pursuant to section 29 (1), it is for the competent higher regional court to give such a decision.

(7) The appointment ends once the person pursued is surrendered or once a final decision is given not to surrender the person pursued. The appointment encompasses procedures pursuant to section 33. If no decision declaring the extradition not to be permissible is given and the person in question is not surrendered, the appointment ends once the public prosecution office at the higher regional court gives a decision not to surrender the person pursued. In the cases under subsection (3) no. 1 and no. 2, the appointment may be revoked if there is no longer a requirement for the mandatory assistance of legal counsel.

(8) The provisions of Book 1 Division 11 of the Code of Criminal Procedure, with the exception of sections 139, 140, 141 and 141a, section 142 (2) and (3), section 143 (1) and (2) sentences 2 to 4 and section 143a (3) apply accordingly. Sections 142 (7), 143 (3) and 143a (4) of the Code of Criminal Procedure apply accordingly, with the proviso that the decision on an immediate complaint (sofortige Beschwerde) is given by that court which is competent to give a decision on whether extradition is permissible. There is no right to contest decisions given by the higher regional court as per subsection (6) sentence 2 and subsection (7) sentence 4.

Part 2 Surrender of Persons

§ 31 Legal Assistance

(1) The suspect may, at any stage of the proceedings, use legal assistance.
(2) An attorney will be ordered as the legal assistance for a suspect who has not chosen legal assistance at the latest after the first examination pursuant to § 14 para. 2 also in connection with § 15 para. 2.
(3) The provisions of Chapter 11 of Part One of the Criminal Procedure Code, with the exception of §§ 140, 141 para. 1-3, and 142 para. 2, apply mutatis mutandis.

Part 2
Surrender of Persons

§ 14
Procedure After Capture Based Upon an Warrant of Arrest for Surrender
(relating to Article 59 para. 2 of the Rome Statute)

(1) If the suspect is captured based upon an arrest warrant for surrender, the
suspect must be brought without delay, at the latest on the day after capture, before
a judge of the next District Court (Amtsgericht).
(2) The judge of the District Court will examine the suspect promptly after the presentation, at the latest on the next day, regarding his personal circumstances, in
particular, regarding his citizenship. He shall inform him, that in each phase of the
proceedings he may use legal assistance (§ 31) and that it is up to him whether or
not to make statements regarding the criminal act he is accused of committing. He
shall then inform the suspect that he may apply for suspension of execution of the
arrest warrant for surrender, as well as that he may at any time approach the Court
regarding its arrest warrant, and he shall question him as to whether and, if necessary, upon which grounds, he seeks to raise objections to the surrender; § 41
para. 5 sentence 1 applies mutatis mutandis. In cases under § 11 para. 2 the
examination also extends to the topic of the charge; in most cases, information
provided by the suspect shall be included in the record of proceedings. Provided that
the Court requests, it shall be provided with a copy of the record of proceedings.

Section 136
Examination

(1) At the commencement of the examination, the accused is to be informed of the offence with which he or she is charged and of the applicable criminal law provisions. The accused is to be advised that the law grants him or her the right to respond to the charges or not to make any statement on the charges and the right, at any stage, even prior to the examination, to consult defence counsel of his or her choice. If the accused wishes to consult defence counsel prior to the examination, he or she is to be provided with information which makes it easier for him or her to be able to contact such defence counsel. Reference is thereby to be made to any emergency legal services which are available. The accused is, further, to be advised that he or she may request evidence to be taken in his or her defence and, under the conditions of section 140, to request the appointment of court-appointed defence counsel in accordance with section 141 (1) and section 142 (1); in the latter case, reference is to be made to the obligation to pay costs as referred to in section 465. In appropriate cases, the accused is also, as a rule, to be informed that he or she may make a written statement and of the possibility of victim–offender mediation.

Section 144
Additional court-appointed defence counsel

(1) In cases of mandatory defence, up to two additional court-appointed defence counsel may be appointed for the accused in addition to defence counsel whom the accused has chosen himself or herself or in addition to defence counsel appointed in accordance with section 141 if this is necessary to ensure the swift conduct of proceedings, in particular on account of their scope or difficulty.

(2) The appointment of additional defence counsel is to be revoked as soon as his or her involvement is no longer necessary for the swift conduct of the proceedings. Section 142 (5) to (7) sentence 1 applies accordingly.

Section 168c
Right to be present during judicial examination

(1) The public prosecutor and defence counsel are permitted to be present during the judicial examination of the accused. Following the examination, they are to be given the opportunity to comment or to ask the accused questions. Questions or statements which are inappropriate or of no relevance to the matter may be rejected.

(2) The public prosecutor, accused and defence counsel are permitted to be present during the judicial examination of a witness or an expert. Following the examination they are to be given the opportunity to comment or to ask the examined person questions. Questions or statements which are inappropriate or of no relevance to the matter may be rejected. Section 241a applies accordingly.

(3) The judge may exclude an accused from being present at the hearing if his or her presence would jeopardise the purpose of the investigation. This in particular applies if it is to be feared that a witness will not tell the truth in the presence of the accused.

(4) If an accused who is not at liberty has defence counsel, he or she is entitled to be present only at those hearings which are held at the court of the place where he or she is in custody.

(5) The persons entitled to be present are to be given prior notice of the dates set down for the hearings. In the cases under subsection (2), notification is dispensed with insofar as it would endanger the success of the investigation. Persons entitled to be present do not have the right to request a change of the date set down for a hearing if they are prevented from being present.