Chapter III
Recognition and Enforcement of Judicial Decisions
Part One
Enforcement of Foreign Custodial Sentences and Preventive Measures
Subdivision One
Enforcement of Judgements by other Member States
Prerequisites
§ 39. (1) A legally-binding custodial sentence or a preventive measure involving deprivation of liberty for life or for a limited period of time imposed on a natural person either staying in the issuing State or in Austria by a court of another Member State on the basis of criminal proceedings, shall be enforced in accordance with the following prerequisites under the terms of this Subdivision:
1. independently from the consent of the sentenced person if he or she
a) is an Austrian national and has his or her domicile or permanent residence in Austria;
b) has his or her domicile or permanent residence in Austria and has fled to Austria in view of the criminal proceedings pending against him or her in the issuing State or following the conviction in this State or otherwise returned there;
c) would be deported to Austria after having served the sentence or measure imposed on the basis of an expulsion or deportation order or a restraining order, independently from whether this decision is included in the judgment or has been taken separately by a court or administrative authority consequential to the judgment;
2. with consent of the sentenced person and only in relation to the Member States that have made such declaration, if the sentenced person is not an Austrian national but has been legally residing continuously for at least five years in Austria and does not lose his or her permit as a permanent or longterm resident in Austria due to the conviction; or
3. with consent of the sentenced person if due to certain circumstances the sentenced person has such close bonds to Austria that it can be assumed
(2) The Federal Ministry of Justice has to announce by ordinance which Member States have made a declaration according to para.1 item 2. that the enforcement in Austria would serve the purpose of facilitating the social rehabilitation and reintegration of the sentenced person into society, even if the prerequisites of para. 1 and 2 do not apply, unless the sentenced person loses his or her residence permit in Austria as a consequence of the conviction.
Inadmissibility of Enforcement
§ 40. The enforcement of a custodial sentence or preventive measure involving deprivation of liberty imposed by final and absolute decision of a court of another Member State shall not be admitted even though the prerequisites of § 39 para. 1 are met,
1. if the criminal acts in respect of which the judgment was issued do not constitute offences punishable by the courts under Austrian law; for fiscal offences § 12 applies accordingly;
2. if at the time the documents mentioned in § 41a para. 1 are received by the competent court less than six months of the custodial sentence or the preventive measure involving deprivation of liberty imposed remain to be served. In such case, several custodial sentences or remaining parts of such sentences to be enforced have to be added up;
3. if the criminal acts in respect of which the judgment was delivered were committed wholly or for a major part in Austria or on board of an Austrian vessel or aircraft and the office of public prosecution has decided to dismiss the case because of the same criminal act or closed the proceedings due to other reasons;
4. if the sentenced person has been convicted in Austria for the same criminal act in respect of which the judgment was delivered or if there has been a legally binding judgment in another state that has already been enforced;
5. if the criminal act in respect of which the judgment was delivered was committed by a person who, owing to his or her age, could not have been held criminally responsible under Austrian law;
6. if the enforcement of the custodial sentence imposed or the preventive measure involving deprivation of liberty is statute-barred under Austrian law;
7. insofar as the sentenced person has been granted an amnesty or a pardon in Austria or in the issuing State;
8. insofar as enforcement would violate provisions on immunity;
9. if the judgment was rendered in absentia of the sentenced person, unless it emanates from the certificate that the person in accordance with the procedural rules of the issuing State
a) was in fact informed in due time by personal summons or in any other way of the time and place of the trial leading to the judgment and was also informed that the decision can be taken in absentia; or
b) aware of the time and place of the trial entrusted a selected lawyer or a lawyer appointed by the court with his or her representation in the trial and was in fact represented by this lawyer during the trial; or
c) after having been served the judgment in absentia and after having been instructed about the right to request a review of the judgment or to appeal against the decision and thus achieve a new evaluation of the facts also taking into account new evidence in his or her presence and a suspension of the decision,
aa) explicitly declared not to request a review of the judgment or to appeal against the decision or
bb) within the existing time limits does not request a review of the judgment or appeal against the decision;
10. if the custodial sentence imposed also includes a preventive measure involving deprivation of liberty which could not be enforced in Austria even considering the possibilities of reducing or adapting the sentence of § 41b para. 3 and 4;
11. if the issuing state, before a decision on the enforcement is taken, does not consent to a request pursuant to § 41e para. 4 in accordance with § 41e para. 2 item 7, that the sentenced person can be prosecuted, sentenced or otherwise subjected to the enforcement of a custodial sentence or a preventive measure involving deprivation of liberty for a criminal act committed prior to the transfer other than that for which the person was transferred; or
12. if there are objective facts that prove that the judgment as been rendered in violation of fundamental rights or fundamental principles of Article 6 of the Treaty on the European Union, especially that the custodial sentence or the preventive measure involving deprivation of liberty has been imposed for the purpose of punishing the sentenced person for his/her sex, race, religion, ethnic origin, nationality, language, political conviction or sexual orientation, and the sentenced person did not have the possibility to bring these circumstances to the European Court of Human Rights or the Court of the European Union.
Chapter III
Recognition and Enforcement of Judicial Decisions
Part One
Enforcement of Foreign Custodial Sentences and Preventive Measures
Subdivision One
Enforcement of Judgements by other Member States
Custody to secure enforcement
§ 41. (1) Upon application of the office of public prosecution the court can arrest the sentenced person prior to forwarding the judgment with the certificate or prior to the decision on the enforcement in order to secure the enforcement, if
1. a corresponding request of the issuing state is presented, the sentenced person is in Austria and the enforcement is not a priori inadmissible;
2. due to specific facts there is the strong suspicion that the sentenced person will try to avoid enforcement because of the duration of the custodial sentence or the preventive measure involving deprivation of liberty to be enforced;
3. the consent of the sentenced person to the enforcement in Austria is not necessary.
(2) The provisions on custody after bringing formal charges (§ 175 para. 5 StPO) shall be applied correspondingly to the procedure of imposing, continuing and terminating custody according to para. 1. Custody has to be terminated in any case if the time limits of § 41a para. 4 have expired or if the enforcement is dismissed (§ 41f).
Procedure
§ 41a. (1) Enforcement requires that
1. the judgment to be enforced
2. the certificate signed by the competent authority of the issuing State (Annex VII) and, unless the issuing State has declared to accept certificates in the German language as executing State (§ 42b para. 5), the translation of the certificate into the German language;
(2) If the conditions set out in § 39 para. 1 prevail, the Austrian court can request the competent authority of the issuing State, also on request of the sentenced person, to forward the documents mentioned in para. 1.
(3) In the cases of § 39 para. 1 item 3 the court shall first consult with the competent authority of the issuing State whether the conditions set out in this provision prevail. If the court due to the results of the consultation is convinced that enforcement in Austria will serve the purpose of facilitating the social rehabilitation and reintegration of the sentenced person into society, the competent authority of the issuing State has to be informed immediately that the documents listed in para. 1 can be forwarded.
(4) If
1. the certificate is not forwarded or is not complete in essential parts or clearly contradicts the judgment; or
2. there are indications that the conditions set out in § 39 para. 1 are not met or that one of the reasons for the inadmissibility of enforcement listed in § 40 items 3, 4, 10 and 12 prevail,
the competent authority of the issuing State shall be requested to forward the missing documents, complete them or forward additional information within an appropriate period to be determined, together with the information that in case the time limit expires the judgment will be enforced neither partly nor completely and the sentenced person will be released.
(5) Prior to the decision a reasoned opinion shall be forwarded to the competent authority of the issuing State stating that the enforcement of the custodial sentence or the preventive measure involving deprivation of liberty in Austria in the cases of § 39 para. items 1 and 2 does not serve the purpose of facilitating the social rehabilitation and reintegration of the sentenced person into society, especially because the relatives of the sentenced person live in the issuing State or in another (Member) State or because the sentenced person is working in the issuing State or in another (Member) State. If the competent authority of the issuing State after examining this opinion declares that the certificate will not be withdrawn, the enforcement shall be taken over if the other prerequisites prevail.
(6) Prior to the decision on partial inadmissibility of the enforcement the competent authority of the issuing State shall be requested to explain whether and if yes under which circumstances consent is given to a partial enforcement or whether the certificate is being withdrawn.
(7) When deciding on the inadmissibility of the enforcement based on the reasons stated in § 40 item 3 it shall especially be taken into consideration whether the criminal act in respect of which the judgment was issued, was partly or wholly committed on the territory of the issuing State.
(8) The sentenced person has to be heard concerning the prerequisites of enforcement (§§ 39 and 40) and the completed standard form under Annex VIII shall be handed over to him or her if he or she is in Austria.
(9) § 14 para. 1 to 5 apply to the means of communication.
Decision
§ 41b. (1) The decision on enforcement shall be taken in the form of a court
order. The order has to contain the denomination of the court that issued the
judgment to be enforced, its case number, a short description of the facts including
time and place of the criminal act, the denomination of the criminal act and the
applicable legal provisions.
(2) If the decision is taken to enforce the judgment, the custodial sentence or
preventive measure involving deprivation of liberty to be enforced in Austria
(subject to the provisions of para. 3 and 4) shall be determined in such nature and
duration that it corresponds to the sentence imposed in the judgment to be enforced.
§§ 38 and 66 StGB are applicable.
(3) If the custodial sentence or preventive measure involving deprivation of
liberty imposed exceeds the maximum penalty provided for the same offence or for
similar offences under Austrian law, it shall be adapted to the maximum penalty
provided for similar offences under Austrian law.
(4) If the custodial sentence or preventive measure involving deprivation of
liberty imposed is incompatible with Austrian law in terms of its nature, it shall be
adapted to the custodial sentence or preventive measure involving deprivation of
liberty provided for under Austrian law for similar offences. The adapted custodial
sentence or preventive measure involving deprivation of liberty shall correspond as
closely as possible to the sentence imposed in the issuing State and shall not
aggravate it.
(5) The office of public prosecution and the sentenced person are entitled to
appeal against the court order within 14 days to the Superior Regional Court.
(6) To the enforcement, the release on probation and the procedure of granting
pardon Austrian law shall be applied.
Postponing the decision on enforcement
§ 41c. The decision on the enforcement of the custodial sentence or preventive
measure involving deprivation of liberty may be postponed
1. until a final and absolute decision on the appeal against the court order has been taken (§ 41b para. 5);
2. until the judgment to be enforced is translated provided that the court considers this necessary and orders the translation at its own costs;
3. until the supplementary information or documents requested from the competent authority of the issuing State are received.
Time limits for the decision
§ 41d. Unless there is a reason for the postponement of the decision on the enforcement according to § 41c, the decision shall be taken within 90 days from the time the competent court has received the documents listed in § 41a para. 1. If this time limit cannot be met in exceptional cases, the court shall inform the competent authority of the issuing State giving the reasons for the delay and the time presumably needed for the final decision to be taken.
Chapter III
Recognition and Enforcement of Judicial Decisions
Part One
Enforcement of Foreign Custodial Sentences and Preventive Measures
Subdivision One
Enforcement of Judgements by other Member States
Information of the issuing State
§ 41g. The court shall inform the competent authority of the issuing State without delay using the means of communication listed in § 14 para. 3,
1. if it forwards the case to the competent court (§ 40a para. 3);
2. of the provisions on release on probation under Austrian law indicating the earliest possible date for this and the duration of the probation period, if requested to do so in the certificate;
3. if the sentence cannot be enforced because the sentenced person cannot be found in Austria after forwarding the documents listed in § 41a para. 1;
4. of the final decision to enforce the sentence indicating the date the decision became final;
5. if the enforcement of the sentence is partially or wholly refused, together with the reasons for such decision;
6. if the custodial sentence or preventive measure involving deprivation of liberty is reduced or adapted, together with the reasons for such decision (§ 41b para. 3 and 4);
7. if the sentence is not enforced because of a an amnesty or pardon granted to the sentenced person;
8. if the sentenced person fled from custody before the enforcement of the sentence; or
9. if the enforcement of the sentence has been completed.
a) Les peines d'emprisonnement sont accomplies dans un État désigné par la Cour sur la liste des États qui lui ont fait savoir qu'ils étaient disposés à recevoir des condamnés.
b) Lorsqu'il déclare qu'il est disposé à recevoir des condamnés, un État peut assortir son acceptation de conditions qui doivent être agréées par la Cour et être conformes aux dispositions du présent chapitre.
c) L'État désigné dans une affaire donnée fait savoir promptement à la Cour s'il accepte ou non sa désignation.
2.
a) L'État chargé de l'exécution avise la Cour de toute circonstance, y compris la réalisation de toute condition convenue en application du paragraphe 1, qui serait de nature à modifier sensiblement les conditions ou la durée de la détention. La Cour est avisée au moins 45 jours à l'avance de toute circonstance de ce type connue ou prévisible. Pendant ce délai, l'État chargé de l'exécution ne prend aucune mesure qui pourrait être contraire à ses obligations en vertu de l'article 110 ;
b) Si la Cour ne peut accepter les circonstances visées à l'alinéa a), elle en avise l'État chargé de l'exécution et procède conformément à l'article 104, paragraphe 1.
3. Quand elle exerce son pouvoir de désignation conformément au paragraphe 1, la Cour prend en considération :
a) Le principe selon lequel les États Parties doivent partager la responsabilité de l'exécution des peines d'emprisonnement conformément aux principes de répartition équitable énoncés dans le Règlement de procédure et de preuve ;
b) Les règles conventionnelles du droit international généralement acceptées qui régissent le traitement des détenus ;
c) Les vues de la personne condamnée ;
d) La nationalité de la personne condamnée ;
e) Toute autre circonstance relative au crime, à la situation de la personne condamnée ou à l'exécution effective de la peine, susceptible de guider le choix de l'État chargé de l'exécution.
4. Si aucun État n'est désigné comme prévu au paragraphe 1, la peine d'emprisonnement est accomplie dans un établissement pénitentiaire fourni par l'État hôte, dans les conditions définies par l'accord de siège visé à l'article 3, paragraphe 2. Dans ce cas, les dépenses afférentes à l'exécution de la peine sont à la charge de la Cour.