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

§ 40
Principle

Mutual Assistance shall be provided through the enforcement of non-appealable criminal penalties imposed by the Court in accordance with the Rome Statute as well as this law. 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.


§ 41
Enforcement of Prison Sentences
(relating to Article 77 para. 1,Article 103 para. 1 and 2, and Articles 105, 106, and 110 of the Rome
Statute)

(1) Prison sentences 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 Court and the office responsible pursuant to § 68 para. 1 have agreed
upon assumption of responsibility for the enforcement. Upon assumption of jurisdiction over the convicted person a statement by the Court regarding the portion of the imposed penalty remaining to be enforced shall be presented.
(2) The prison sentence shall be enforced to the extent set forth by the Court. The provisions of the Criminal Code (Strafgesetzbuch) regarding suspension of enforcement of the remainder of a set period or a life-long prison sentence (§§ 57-57b of the Criminal Code) and the Criminal Procedure Code regarding enforcement of a prison sentence are inapplicable. The enforcement shall end when the Court so notifies.
(3) Upon request of the Court, the convicted person shall be surrendered to the Court or to a state designated by it. To the extent the Court does not explicitly notify that the convicted person is to be released from custody, he shall be held in custody until surrender to the Court or to the authorities of a state designated by it. Should the Court at a later point in time request a resumption of the enforcement of a criminal penalty already partially enforced domestically, the documents referred to in para. 1 number 1 are not required to be resubmitted. Para. 1 sentence 1 number 2 and sentence 2 apply mutatis mutandis.
(4) The Court is responsible for decisions relating to enforcement of the penalty, including pardon, reinstatement of the proceedings, and reduction of the sentence by
the Court, as well as for other decisions that could encompass a stopover for the convicted person outside of the institution in which the convicted person may be detained without guard. To the extent circumstances arise that, under German law, would enable a postponement, a temporary postponement, an interruption in enforcement, a termination of the enforcement, a set-off against the prison sentence to be served, or enforcement orders allowing a stopover outside of the enforcement institution without guard, a decision of the Court shall be obtained. The enforcement of the penalty shall, in addition, be arranged according to German regulations and correspond to the enforcement of penalties that are imposed by German courts for similar criminal acts. The provisions of the Prison Act (Strafvollzugsgesetz) regarding objection proceedings and court proceedings are inapplicable to the extent the Court is responsible for rulings on enforcement measures.
(5) Communications between the convicted person and the Court shall be unimpeded and confidential. Upon request of the Court, members of the Court shall be granted admittance to the penal institution. If the convicted person raises objections to the enforcement of the penalty or files motions regarding which the Court must rule, a ruling by the Court shall be obtained.
(6) Costs arising from the enforcement shall be borne by the federal government in accordance with an agreement to be entered into with the states (Länder). This does not apply to the extent costs are to be assumed by the Court pursuant to law or other regulations.

§ 42
Escape and Speciality
(relating to Article 108, Article 111 of the Rome Statute)

(1) Should the convicted person escape or otherwise evade justice, the office responsible pursuant to § 46 para. 1 shall issue an arrest warrant and shall use further measures as required to establish the whereabouts and to effect arrest of the suspect. A request of the Court is not required for the ordering of individual investigative measures. § 31 para. 2 sentence 1 of the Law on the Administration of Justice (Rechtspflegergesetz) applies mutatis mutandis. The Court will be promptly informed of the escape; in addition, the proceedings shall be handled in accordance with Article 111 of the Rome Statute.
(2) Prosecution for criminal acts that the convicted person committed prior to his surrender to the German authorities or the execution of a prison sentence imposed prior to surrender or measures for the prevention of crime and the reformation of offenders (Maßregel der Besserung und Sicherung) shall occur subject to the provisions of Article 108 para. 3 of the Rome Statute only upon agreement of the Court.
(3) If a foreign state requests extradition, provisional extradition, deportation, or other transfer to its sovereign territory for criminal prosecution or execution of a sentence or other sanction, approval may be given when the Court, subject to the provisions of Article 108 para. 3 of the Rome Statute, has given prior approval and the extradition is permissible according to the extradition regulations applicable to the requesting state.

§ 43
Enforcement of Monetary Fines
(relating to Article 77 para. 2(a), Article 109 para. 1 of the Rome Statute)

(1) Monetary fines 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 request states up to which amount the monetary fine is to be enforced domestically insofar as the Court has requested enforcement of monetary fines from more than one state.
To the extent that the monetary fine to be enforced is stated in a currency other than Euro, the exchange rate officially set on the day of receipt of the request shall be used for the conversion.
(2) The Court-Fee Collection Ordinance (Justizbeitreibungsordnung) applies to the enforcement of monetary fines as far as this law does not otherwise provide.
(3) The fine is due upon receipt of the request. For interpretation of the rulings on guilt or sentencing, the calculation of the imposed penalty, objections to the permissibility of the enforcement of the penalty, or when under German law the prerequisites of § 459a of the Criminal Procedure Code would be met, a decision of the Court shall be obtained. The progress of the enforcement shall not be inhibited hereby; the office responsible pursuant to § 46 para. 2 may, however, postpone or suspend the enforcement. A continuation of enforcement at a later point in time shall be ensured by appropriate measures; to this end, a search of the convicted person, his living quarters and possessions, as well as the confiscation of objects, is allowed.
(4) § 459b and 459c para. 2 and 3 of the Criminal Procedure Code apply mutatis mutandis. The result of the enforcement shall be reported to the Court and the fine collected shall be transferred to it.
(5) To the extent the Court, because of the uncollectability of a monetary fine, lengthens the imposed detention based upon a criminal act in Article 5 of the Rome Statute or, because of the uncollectability of an imposed monetary fine based upon a criminal act as set forth in Article 70 para. 1 of the Rome Statute, imposes a prison sentence, §§ 41 and 42 apply to the enforcement of the prison sentence.

§ 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.

§ 45
Enforcement of Restitution Orders
(relating to Article 75 para. 2, Article 109 of the Rome Statute)

Restitution Orders that require the payment of a sum of money shall be enforced when:
1. requested by the Court upon presentation of a complete final and enforceable
court ruling on guilt and punishment, as well as an order pursuant to Article 75
of the Rome Statute, and
2. the request states up to what amount the Restitution Order is to be enforced
domestically to the extent the Court has requested enforcement by more than
one state.
In addition, the enforcement shall occur in accordance with § 43.

§ 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.
(4) As to proceedings before the Higher Regional Court, § 20 para. 2 and 3, § 21 para. 1 and 4, §§ 22, 23, and 29 para. 4, § 33, as well as the provisions of Chapter 11 of Part One of the Criminal Procedure Code with the exception of §§ 140 – 143 apply mutatis mutandis. § 31 applies mutatis mutandis with the exception that legal assistance is to be ordered when:
1. because of the difficulty of the factual or legal situation the involvement of legal assistance seems advisable, or
2. it is obvious that the suspect is incapable of sufficiently protecting his rights.

Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.

Article 106
Supervision of enforcement of sentences and conditions of imprisonment
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

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.