Part 4 Mutual Assistance through the Execution of Decisions and Orders of the Court

§ 40 Principle

Orders of forfeiture pursuant to Article 77 para. 2(b) of the Rome Statute as well as decisions under Article 75 of the Rome Statute shall also be enforced.

Part 4 Mutual Assistance through the Execution of Decisions and Orders of the Court

§ 44 Enforcement of Forfeiture Orders
(relating to Article 77 para. 2(b), Article 109 para. 2 of the Rome Statute)

(1) Orders pursuant to Article 77 para. 2(b) of the Rome Statute (Forfeiture Orders) shall be enforced when:
1. requested by the Court upon presentation of a complete final and enforceable court ruling on guilt and punishment, and
2. the objects at issue are located in Germany.

(2) To effect enforcement, the court shall order forfeiture of the object. § 73 para. 2-4, §§ 73a and 73b of the Criminal Code apply mutatis mutandis.

(3) If the forfeiture of an object is ordered, ownership of the object or the forfeited right, upon the approval of the mutual assistance, transfers through the office responsible pursuant to § 68 para. 1 to the Court, when the party affected by the order was at that time the owner thereof. Prior to the authorization, the order has the effect of a prohibition on sale within the meaning of § 136 of the Civil Code (Bürgerliches Gesetzbuch); the prohibition also encompasses other dispositions than sale. Objects, the forfeiture of which has been ordered, will be surrendered to the Court upon approval of the mutual assistance.

(4) To the extent that a forfeiture order of the Court contains a decision regarding the rights of third parties, these are binding, unless:
1. the third party obviously did not have the opportunity to enforce his rights,
2. the decision cannot be reconciled with a domestic civil law decision reached in
the same matter, or
3. the decision relates to the rights of third parties to real property or real property rights located in Germany; priority notices also constitute third party rights.
If one of the cases in sentence 1 exists, the Court shall have the opportunity to provide comments in the proceedings under § 68 para. 1. The rights of third parties to the objects remain to the extent foreseen by the Statute. Third parties who, under the circumstances of the case could exercise rights over the object, shall have, prior to a ruling, the opportunity to provide comments to the extent they have not already been able to provide comment to the Court. They may use legal assistance at each stage of the proceedings.

(5) To the extent an order for the forfeiture of an object is under consideration based upon a request of the Court, it may be seized to guarantee the forfeiture. To this end, a search may also be undertaken. Jurisdiction is determined in accordance with § 46 para. 3. In addition, §§ 111b – 111h and 111l of the Criminal Procedure Code apply mutatis mutandis. § 111k applies mutatis mutandis with the exception that prior to return to the injured party, the opinion of the Court shall be obtained; return shall not occur insofar as the Court in its opinion is against it.

Part 4 Mutual Assistance through the Execution of Decisions and Orders of the Court

§ 46 Jurisdiction, Appeal to the Federal Supreme Court, Legal Assistance

(1) The office responsible for the enforcement of prison sentences of the Court (§§ 41 and 42) is the public prosecution office attached to the Higher Regional Court in whose district the institution is located in which the convicted person is in custody.
(2) Jurisdiction for the enforcement of monetary fines per § 43 and Restitution Orders per § 45 lies with the public prosecution office attached to the Higher Regional Court in whose district the convicted person has his legal residence or, in the absence thereof, where he habitually resides. If the legal or habitual residence cannot be determined, jurisdiction lies with the public prosecution office attached to the Higher Regional Court in whose district objects belonging to the convicted person are situated. If objects are situated in the districts of different Higher Regional Courts, jurisdiction is determined based upon which public prosecution office was first involved in the matter. For as long as jurisdiction under sentences 1-3 cannot be determined, jurisdiction is determined by the seat of the federal government. The necessary judicial orders shall be made by the Higher Regional Court. Rulings by the Higher Regional Court are non-appealable.
(3) The judicial orders required for enforcement of an order of forfeiture of the Court (§ 44) shall be made the Higher Regional Court. Para. 2 sentence 6 applies mutatis mutandis. The public prosecution office attached to the Higher Regional Court shall prepare the decisions. Local jurisdiction lies with the Higher Regional Court and the public prosecution office attached to the Higher Regional Court in whose district the object is situated. If objects are situated in the districts of different Higher Regional Courts, jurisdiction is determined based upon which Higher Regional Court or, as long as no Higher Regional Court is involved, upon which public prosecution office was first involved in the matter. For as long as jurisdiction under sentence 2 or sentence 3 cannot be determined, jurisdiction is determined by the seat of the federal government.

Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.

This provision follows the ICC Statute.