Chapter I
General Provisions

Scope of Application
§ 1. (1)
a) the surrender of persons;

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

Priority of Surrender
§ 15. If a European arrest warrant by another Member State has been served, or if there is another adequate reason to offer surrender to another Member State, it is inadmissible to remove the person concerned from the country on the basis of another statutory provision.

Launching a Surrender Procedure
§ 16. (1) The public prosecutor shall launch a surrender procedure, if a request for surrender by a Member State is received, or if it can be presumed, on the basis of specific facts that a person is staying in Austria, for whom a European arrest warrant has been issued, or that an alert for his/her apprehension has been issued under the Schengen Information System. The issuing judicial authority shall be requested to submit a European arrest warrant if the sought person is staying in Austria.

(2) In all other cases, the Federal Ministry of the Interior shall verify whether requests by other Member States for the surrender of a person, which were received by way of an automation-supported search system, by way of the International Criminal Police Organisation (INTERPOL), or by some other way of official criminal-police assistance, give rise to trigger an alert in the search instruments for his/her exploration, for the purpose of apprehending that person and committing him/her to the prison of the competent court.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

Instruction on Legal Rights
§ 16a. (1)
4. the possibility to agree to the surrender after conferring with a defence lawyer at the earliest during the first hearing on the detention and the consequences of such declaration (simplified surrender, § 20, § 32 para. 1 to 3 ARHG).

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

Offer to Surrender
§ 17. (1) The public prosecutor shall verify, also when no European arrest warrant has been received, whether there are grounds for an offer to surrender a person apprehended in Austria to the Member State concerned if – on the basis of specific facts – it must be presumed that he/she has committed acts that are subject to the execution of such an arrest warrant.

(2) If there are grounds for offering the surrender, the public prosecutor shall apply for the launching of a surrender procedure, for the examination of the person concerned by the court and for addressing an inquiry to the judicial authority of the Member State in question.

(3) Upon application by the public prosecutor pursuant to § 18, the court shall impose detention pending surrender upon the person concerned, applying the provisions of § 29 of the ARHG in analogy, unless this appears to be inadmissible, and inquire from the judicial authority of the Member State concerned, enclosing a presentation of the facts, whether a European arrest warrant will be issued against the person concerned. A reasonable time limit shall be set for issuing such an arrest warrant, indicating that, when the time limit expires without any reaction being received, a renunciation of the surrender will be presumed, and the person concerned will be released. The time limit must never exceed 40 days, as of the apprehension of the person concerned. When the time limit expires without any reaction, the
person concerned shall be released without delay, unless the public prosecutor applies immediately that pre-trial detention be imposed upon the person concerned.

Detention Pending Surrender
§ 18. (1) A European arrest warrant or an alert pursuant to Article 95 of the Schengen Agreement Application Convention (SAAC), Federal Law Gazette III No. 90/1997, shall be deemed to be a request for implementing a surrender procedure and imposing detention pending surrender.

(2) The provisions on detention pending extradition pursuant to § 29 of the ARHG shall apply in analogy to detention pending surrender.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

Simplified Procedure
§ 20. (1) When examining the person concerned in connection with the European arrest warrant, the court shall inform him/her of the possibility of a simplified procedure. Moreover, § 32 para. 1 to 3 of the ARHG shall apply in analogy.

(2) If the person consents to the execution of the European arrest warrant and agrees to being surrendered without a formal procedure being executed, which shall be recorded in the court minutes, the court shall immediately pronounce the decision ordering the surrender, provided that the prerequisites for a surrender are met, and a written copy of the court decision shall be served, without delay, upon the person concerned and the public prosecutor. The copy shall indicate the underlying European arrest warrant and point out that this simplified procedure does not entail any entitlement to the speciality rule. A decision on a possible postponement of the surrender shall also be taken in this court decision. If the prerequisites for a surrender do not prevail, § 21 shall be applied to the further procedure.

(3) The person concerned and the public prosecutor have the right to appeal the decision pursuant to para. 2 by filing a complaint with the higher regional court within 3 days as of the pronouncement of the decision. The complaint has suspense effect. The second-instance court shall decide on a complaint against the decision to surrender within 40 days as of the consent given by the person concerned.

(4) The court shall inform the issuing judicial authority of the status of the procedure within 10 days as of the consent given by the person concerned or send it, without delay, a copy of the final and enforceable decision which constitutes the decision on the European arrest warrant.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

Decision on Surrender
§ 21. (1) Within 30 days as of the apprehension the court shall order, by way of decision, whether the surrender of the person concerned is granted or refused, which decision shall be issued in writing. The procedural provisions on the admissibility of the extradition pursuant to § 31 para. 1 first sentence, para. 2 to 5 and para. 6 first to third sentence of the ARHG shall apply in analogy.

(2) If detention pending surrender was imposed on the person concerned on the basis of a European arrest warrant, pursuant to § 18, a decision on the execution of the European arrest warrant shall be taken with final and enforceable effect within 60 days. If this time limit cannot be met, especially on account of the specific difficulties of a case, the court shall inform the issuing judicial authority accordingly, prior to the expiry of the time limit. In this case, the time limit for the decision shall be extended by another 30 days.
(2a) The time limits indicated in para. 1 and 2 are not affected by the right of the person concerned pursuant to § 16a para. 1 item 5.

(3) A detention pending surrender may be only continued beyond the time limit extended pursuant to the last sentence of para. 2 if this unavoidable, due to the special difficulties or the special scope of verifying the prerequisites for the execution of an arrest warrant, with a view to the weight of the grounds for the detention. The foregoing shall not affect the time limits pursuant to § 18 para. 2.

(4) The court shall communicate, without delay, a copy of the final and enforceable decision to the issuing judicial authority which constitutes the decision on the European arrest warrant.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

European Arrest Warrants by Several Member States
§ 22. (1) If two or several Member States request the execution of a European arrest warrant against one and the same person, the court shall take a decision, considering all circumstances, which European arrest warrant shall be given priority. These circumstances shall include, in particular, the gravity of the act, the place of the offence, the time at which the European arrest warrant was issued, as well as the circumstance whether the arrest warrant was issued for conducting criminal prosecution or for enforcing a custodial sentence or a preventive measure involving deprivation of liberty. An opinion by Euro-just may be obtained prior to taking a decision.

(2) At the same time when taking the decision pursuant to para. 1, a decision shall be taken on the admissibility of the further surrenders in order to execute the other European arrest warrants, if the surrender to the issuing State takes place with the reservation of the speciality rule.

(3) These decisions shall be communicated to all Member States involved.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

Executing the Surrender
§ 24. (1) § 36 of the ARHG shall apply to the execution of the surrender of the person concerned, on the basis of the following provisions. § 7 of the ARHG shall apply to the need for travel documents.

(2) If the surrender is made to a neighbouring State, or if the necessary transit permits have already been obtained, the court shall order – informing the issuing judicial authority at the same time – that the person concerned will be surrendered to the authorities of the neighbouring state at a specified border post, or an agreed place of surrender within 10 days after the permission of the surrender has become final and enforceable. In all other cases, the court shall request the issuing judicial authority in writing and without delay to accept the person concerned within 10 days, after the permission of the surrender has become final and enforceable, as well as to propose the time and place of the surrender. The Federal Ministry of the Interior (Federal Office of Criminal Investigations) shall also be informed without delay.

(3) If the person concerned is not taken over within 10 days after the permission of the surrender has become final and enforceable, he/she shall be released, unless a later date was agreed for the surrender during that period, or circumstances prevail that are beyond the control of the Member States involved. If such circumstances prevail, the court shall once again request the issuing judicial authority in writing,
as described in para. 2, to take over the person concerned within 10 days after the obstacle has been eliminated and to make a proposal for the surrender. If the person is not taken over during that period, he/she shall be released.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Three
Procedure for Approval of Surrender

Postponing the Surrender
§ 25. (1) The court shall postpone the surrender upon application by the person concerned, by the public prosecutor or ex officio if
1. the person concerned is not in a position to be transported, or if there are serious reasons for presuming that implementing the surrender might constitute a risk to the life and limb of the person concerned,
3. the person concerned is being held in pre-trial detention,
4. the presence of the person, who is at large, is urgently required for criminal proceedings in Austria,
5. the person concerned shall to be kept in pre-trial detention by the fiscal authorities, or
6. a custodial sentence or a preventive measure involving deprivation of liberty, which a court or an administrative authority imposed, is to be enforced in connection with the person concerned.

(2) If, on account of the surrender, the authorities refrain from criminal prosecution or execution (§ 192 para. 1 item 2 of the StPO, § 4 and § 157 para. 1 of the Enforcement of Punishments Act) and if all reasons for a postponement pursuant to para. 1 no longer apply, the person shall be surrendered without delay, with the proviso of § 24.

Conditional Surrender
§ 26. (1) If postponement of the surrender was ordered pursuant to § 25 para. 1 item 6, the person concerned may be surrendered on an interim basis to the issuing judicial authority in order to carry out certain procedural acts, for which execution of the European arrest warrant was granted, especially for the main trial and the delivery of the judgment, if the return of the person after conducting the procedural
acts is guaranteed and a written agreement pursuant to para. 3 is signed. A temporary surrender shall not take place if it were to result in disproportionate disadvantages for the person concerned.

(2) A temporary surrender does not interrupt the enforcement of the custodial sentence or the preventive measure involving deprivation of liberty in Austria.

(3) The agreement shall contain the following, as a minimum:
1. the designation of the procedural steps in which connection the conditional surrender is to be made;
2. the obligation to return the person concerned as quickly as possible after the procedural acts have been completed;
3. a time limit, after the expiry of which the person concerned must be returned in any event, unless an extension of the conditional surrender is agreed upon prior to the expiry of the time limit;
4. the obligation to continue to keep the surrendered person detained and to release him/her only upon an order by the competent court of the executing State;
5. a provision that the conditional surrender does not interrupt the custodial sentence or preventive measure involving deprivation of liberty imposed by the executing State, and that the times spent in custody in the issuing State will be exclusively attributed to the proceedings in the executing State;
6. a provision that all costs in connection with the conditional surrender shall be borne by the issuing State.

(4) If there is reason to obtain a conditional surrender from another Member State, the court shall enter into a written agreement, pursuant to para. 3, with the executing judicial authority upon application by the public prosecutor.

Re-Opening of the Surrender Procedure
§ 27. (1) The surrender procedure shall be re-opened upon application by the person concerned, the public prosecutor or ex officio, if new facts or evidence appear that are suited to give rise to considerable concerns about the correctness of the decision. The court shall decide on the re-opening of the case (§ 43 para. 4 StPO, applying the provisions of § 357 para. 2, second to fifth sentence, and para. 3 StPO in analogy. The provisions of § 19 and § 21 shall apply to the further procedure that follows upon the decision to re-open the surrender procedure.

(2) If the person concerned has already been surrendered to the issuing State, and if an originally granted surrender is refused in the re-opened proceedings, the files shall be submitted to the Federal Ministry of Justice. The Federal Minister of Justice shall request the return of the person concerned from the issuing State.

Subsequent Surrender Procedure
§ 27a. (1) If, after a final decision on granting surrender (§ 21) the same Member State requests the consent to criminal prosecution of other criminal acts committed before the surrender or to the enforcement of a prison sentence or preventive measure involving deprivation of liberty because of such a criminal act or if this Member State transmits a European Arrest Warrant of another Member State with the request of consent to the further transfer to the other Member State, the court which has decided on the execution of the European Arrest Warrant on application of the office of public prosecution has to consent to the subsequent prosecution or surrender if the prerequisites for surrender pursuant to Part Two of Chapter II of this federal law prevail. The office of public prosecution has to request the issuing judicial authority to transmit a protocol of the declaration of the person concerned regarding the request or the European arrest warrant if such protocol has not been transmitted and the person concerned has already been surrendered.

(2) The procedural requirements on the admissibility of extradition pursuant to § 31 para. 1 first sentence, para. 2 to 5 and para. 6 first and third sentence of the ARHG shall apply in analogy. However, there is no hearing if the person concerned has already been surrendered.

(3) The time limits set in § 21 para. 1 and 2 shall apply in analogy.

(4) If after a final decision on granting consent to surrender (§ 21) a request for extradition of a third country with the request of consent to the further transfer of the person concerned is transmitted by the same Member State, § 40 ARHG is to be applied. The office of public prosecution has to request the issuing judicial authority of the other Member State to transmit a protocol of the declaration of the person concerned regarding the request for further transfer, if such protocol has not been transmitted and the person concerned has already been surrendered.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Four
Obtaining the Execution of a European Arrest Warrant

Speciality and Further Surrender or Further Transit
§ 31. (1) A person, who was surrendered to Austria on the basis of a European arrest warrant, issued by an Austrian judicial authority, must neither be prosecuted, nor convicted, nor subjected to a custodial sentence or a preventive measure involving deprivation of liberty, nor surrendered to another Member State on the basis of a further European arrest warrant. A further transit to a third country shall always require the consent of the executing State.

(2) The speciality of surrender shall not be applied if
1. the person has not left the territory of the Republic of Austria within 45 days after his/her final release, although he/she could have left and was allowed to leave,
2. the person left the territory of the Republic of Austria and returns voluntarily, or is returned from a third country lawfully,
3. the act requiring prosecution does not carry a custodial sentence, nor a preventive measure involving deprivation of liberty, or the criminal prosecution does not lead to the application of a measure restricting personal liberty,
4. a punishment or a measure that does not involve deprivation of liberty is enforced in connection with the person, especially a fine or a property-law order, even if this enforcement leads to a restriction of personal liberty, especially by enforcing a substitute prison term,
5. the person, after his/her surrender, expressly renounces the speciality rule, or agrees to the prosecution for a specific punishable act committed prior to the surrender,
6. the person agreed before the executing judicial authority to his/her surrender and expressly waived the speciality rule, or
7. the executing judicial authority waived observance of the speciality principle, or agreed to the prosecution for other punishable acts committed prior to the surrender.

(3) Waiving observance of the speciality rule or consenting to the conduct of a criminal prosecution for specific punishable acts committed prior to the surrender, pursuant to para. 2 item 5, shall only be effective if the person concerned has made these statements which are recorded by the public prosecutor or the court. The person concerned shall be instructed of the effects of the waiver and his/her consent, as well as informed that he/she is free to consult with a legal counsel beforehand.

(4) If there are no exemptions pursuant to para. 2, and if there is reason to prosecute the person concerned also for acts, or to enforce a custodial sentence or a preventive measure involving deprivation of liberty against the person concerned,

(5) If there are no exemptions pursuant to para. 2, or if another Member State requests the execution of a European arrest warrant, that arrest warrant shall be forwarded to the executing judicial authority with the request to grant its consent to the further surrender. The request may contain the reference that consent will be regarded as having been granted if the executing judicial authority does not
communicate a decision or other reply within 30 days after receiving the request.

(6) If a third country requests the extradition of the surrendered person, the court, upon application by the public prosecutor, shall always request the executing judicial authority for its consent to this further surrender, unless the consent of the executing State is deemed to have been granted pursuant to para. 7. The court shall make this request before submitting the files to the Federal Minister of Justice pursuant to § 32 para. 4 of the ARHG, or before taking a decision pursuant to § 31 of the ARHG. The request shall comprise copies of the extradition documents of the third country, as well as a court record drawn up with the person concerned on that person’s statements in relation to the request for extradition.

(7) The Federal Minister of Justice shall proclaim, by way of ordinance, a list of those Member States that have informed the Secretary General of the Council of the European Union that their consent to an additional prosecution, conviction or enforcement of a custodial sentence or preventive measure involving deprivation of liberty or the surrender to another Member State shall be deemed to have been granted in relations to other Member States that have made the same communication, provided that the executing judicial authority does not issue another statement in a specific case in its decision on surrender.

(8) If the person concerned has previously been extradited by a third country to Austria and if the provisions on the principle of speciality or conditions imposed by the third country in connexion with the extradition and accepted by the Republic of Austria, contradict a further surrender the office of public prosecution immediately has to request the issuing judicial authority to transmit the documents necessary for granting extradition together with a translation into a language accepted by the third country indicating the obstacle contradicting surrender. Upon receipt these documents have to be transmitted to the Federal Ministry of Justice in order to obtain consent of the third country to surrender. The time limits indicated in §§ 20 and 21 begin on the day on which speciality or the conditions imposed do no longer contradict surrender.