TITLE III
Transit

CHAPTER TWO
Competences and Procedure

Surrender
§ 49. (1) When granting a transit, the border crossings shall be indicated at which the person to be transited shall be taken over, as well as surrendered. The person to be transited may only be taken over if his/her transit has been granted and thae person is fit to travel.

(2) The transit shall be performed by the security authorities. In the course of the transit, the objects shall also be transported that were handed over together with the person to be transited.

(3) The performance of a transit shall be interrupted if
1. after taking over the person to be transited, new facts or evidence emerge which alone or in connection with the transit documents and the results of possible inquiries give rise to serious concerns as to the admissibility of the transit,
2. the person to be transited committed an act punishable by court and requiring ex officio prosecution, on the territory of the Republic of Austria in the course of the transit, unless prosecution or execution is waived, applying § 192 (1) item 2 of the Code of Criminal Procedure or § 4 and § 157 of the Execution of Punishments Act in analogy, or
3. the person to be transited becomes unfit to travel.

Part 1
General Provisions

7. Surrender of Austrian nationals
(Constitutional provision) Nothing precludes the surrender of Austrian nationals to the International Criminal Court (paragraphs 24 to 28 below) or their transit or transport (paragraph 31 below) or surrender to another State for the enforcement of a sentence passed by the International Criminal Court.

Part 1
General Provisions

12. Free passage
1. Persons summoned by the International Criminal Court from a foreign country to appear before the Court or persons whose presence is required at the seat of the Court shall for such purposes have a right of free passage through Austria, where they may not be prosecuted or punished or detained on account of any act engaged in prior to their entry.
2. Prosecution, punishment or detention on account of an act engaged in prior to entry is admissible if the person summoned overstays the time required for transit through Austria and could actually have left the territory.
3. No safe passage shall be granted where the International Criminal Court requests the arrest of the person summoned (paragraphs 24 to 26 below).

Part 2
Specific provisions

Section 4
Custody pending surrender, surrender and transit

31. Transit and transport

1. At the request of the International Criminal Court, persons may be transported through Austria and held in custody to secure such transit.
2. There is no need to apply for authorisation where the person is conveyed by air and no landing is scheduled on Austria territory.
3. In the event of an unscheduled landing, the person in transit shall be arrested, and the International Criminal Court shall be requested to transmit a request for transit together with the documents referred to in article 89(3)(b) of the Statute.
4. The person in transit shall be released if the request for transit has not been received within 96 hours. Such release shall not preclude a renewed arrest on the basis of a request pursuant to paragraph 24(1) or 26(1) above.
5. The decision on transit shall be taken by the Federal Minister of Justice with the consent of the Federal Minister of the Interior. Such transit shall be approved unless it would impede or delay surrender. A domestic conviction for a criminal offence not within the jurisdiction of the International Criminal Court shall not prevent transit. The authorisation of transit is not open to appeal.
6. Paragraphs 1, 2, 3 and 5 shall apply at the request of the International Criminal Court or of a State that has agreed to enforce a sentence passed by the Court for the transit of persons through the territory of the Republic of Austria on the understanding that the International Criminal Court shall be requested to transmit a request for transit together with a copy of the enforceable judgement in the event of an unscheduled landing.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Five
Transit

Admissibility of Transit
§ 32. (1) The transit of a person through the territory of the Republic of Austria to a Member State shall be granted on the basis of a previously filed request.

(2) No permission shall be required for a transit, if the air route is to be used and a stop-over on the territory of the Republic of Austria is not planned. In the case of a non-scheduled stop-over, transit shall be granted on the basis of a request to be issued by the issuing State.

(3) A title to serve a punishment in Austria concerning the person to be transited shall not oppose a transit. However, in this case the public prosecutor shall examine whether there is reason to request a further surrender or the extradition of the person to be transited, or to request the issuing State for taking over the criminal prosecution.

(4) The provisions on transit shall apply in analogy to requests for the transit transport of persons over the territory of the Republic of Austria to a Member State for the purpose of taking over the criminal prosecution.

Transit of Austrian Nationals
§ 33. (Constitutional Provision) (1) The transit of Austrian nationals through the territory of the Republic of Austria shall only be admissible pursuant to the provisions of the present federal law.

(2) The transit of Austrian nationals for the purpose of enforcing a custodial sentence or preventive measure involving deprivation of liberty shall be inadmissible.

(3) The transit of Austrian nationals shall always take place on the condition that the Austrian national is returned to Austria after having been granted to be heard in court on the enforcement of a custodial sentence or preventive measure involving deprivation of liberty, issued by a court of the issuing State.

Chapter II
European Arrest Warrant and Surrender Procedures between Member States

Part Five
Transit

Decision of Transit
§ 35. The Federal Minister of Justice, in agreement with the Federal Minister of the Interior, shall decide on the transit. He shall communicate his decision directly to the requesting authority.

Obtaining a Transit
§ 36. (1) If there is reason for a transit through a Member State, on the basis of an Austrian European arrest warrant, the court or the office of public prosecution shall communicate the documents listed in § 34 to the competent authority of that Member State with the request to grant consent. The Federal Minister of Justice shall proclaim, by way of ordinance, a list of the authorities in the Member States
with competences for receiving requests for transit.

(2) If there is reason to request a Member States for the transit of a person from a third country, on the basis of a request for extradition, the documents listed in § 34 shall be transmitted to the Federal Ministry of Justice in order to obtain the transit.

Costs of Transit
§ 37. The requesting Member State shall demand reimbursement of the costs of a transit through the territory of the Republic of Austria only if that State were not to bear the expenses of an equivalent Austrian request. In case of doubt, the Federal Minister of Justice shall provide information in this context.