Part 2 Surrender of Persons

§ 29 Surrender of Objects in the Surrender Proceedings

(1) In connection with a surrender, objects may be surrendered to the Court without special request pursuant to § 51 when:
1. it can be used as evidence in the proceedings before the Court, or
2. it was obtained by the suspect or a participant directly or indirectly from the criminal act for which the surrender was approved, or could have been obtained as payment for such objects.
(2) The surrender is only permissible when it is guaranteed that the rights of third parties remain [un]affected and with the reservation that surrendered objects will be promptly returned upon demand.
(3) Under the prerequisites in para. 1 and 2, objects may also be surrendered when the approved surrender cannot be executed upon on account of factual reasons.
(4) The Higher Regional Court shall rule on the permissibility of the surrender, an objection of the suspect, a motion of the public prosecution office attached to the Higher Regional Court, or a motion of a person who asserts that the surrender would result in injury to his rights. If the Higher Regional Court declares the surrender permissible, costs to the public treasury may be awarded against the party who moved for the decision. The release shall not be approved when the Higher Regional Court has declared it impermissible.
(5) To the extent the objects to be surrendered contain personal data of the suspect, upon surrender it shall be indicated that the data may only be used to fulfill the duties of the Court as set forth in the Statue. If personal data of third parties is so connected to the personal data of the suspect that separation is not possible or is possible only with unjustifiable effort, the transfer of this data is also permissible, as long as the justified interests of the suspect or a third party to their secrecy is not apparently greater.

Part 5 Additional Mutual Assistance

§ 51 Surrender of Objects

(1) Notwithstanding the provision of § 58 para. 3, objects will be surrendered upon request of a responsible office of the Court:
1. if they may be used as evidence in proceedings before the Court,
2. if they could have been obtained by a suspect or participant directly or indirectly from an act that is within the jurisdiction of the Court or as compensation for such an object.
(2) Surrender is permissible when:
1. a decision of an office of the Court responsible therefore is presented that orders the seizure of the objects or the freezing within the meaning of Article 93 para. 1(k) of the Rome Statute, and
2. it is guaranteed that the rights of third parties remain unaffected and with the
proviso that surrendered objects shall be promptly returned upon request.
(3) To the extent that objects to be surrendered contain personal data of the suspect, upon surrender it shall be indicated that the data may only be used to fulfill the duties of the Court as set forth in the Rome Statue. If personal data of third parties is so connected to the personal data of the suspect that separation is not possible or is possible only with unjustifiable effort, the transfer of this data is also permissible, as long as the justified interests of the suspect or a third party to their secrecy is not apparently greater.

Part 5 Additional Mutual Assistance

§ 53 Personal Appearance of Witnesses

(2) To the extent the Court assures a person that their testimony will not be used, the information from the person within the scope of the assurance of the Court shall not be used in a German criminal proceeding without the permission of the person. Testimony before the Court also may not be used in a German criminal proceeding without the permission of the person when the person was under a duty to provide information to the Court but under German law could have refused to provide such information

Part 5 Additional Mutual Assistance

§ 58 Disclosure of Officially Obtained Findings and Information

(1) Upon request of an office of the Court responsible therefore, subject to para. 3, German courts and government offices shall send officially obtained information to the Court within the framework of its jurisdiction, to the extent it would be admissible in a German court or a German public prosecution office for a criminal proceeding, when it is guaranteed that:
1. information from the Federal Central Register (Bundeszentralregister) and information obtained via telephone surveillance (§ 59 para. 1) or other covert measures (§ 59 para. 2), shall not be sent to offices outside of the Court, and
2. other findings shall be sent to offices outside of the Court only after prior agreement of the office responsible pursuant to § 68 para. 1.
With the transmittal of the information, maximum deadlines applicable under German law for the storage of the information as well as that the information sent shall only be used for the fulfillment of the tasks of the Court pursuant to the Rome Statute, shall be indicated in an appropriate manner. Should it become evident that incorrect information or information that should not have been sent was transmitted, the Court shall promptly be notified and corrected information or destruction of the information shall be requested.
(2) Subject to para. 3, information within the meaning of para. 1, with the exception of information from the Federal Central Register, may be transmitted to the Court without a request when the prerequisites set forth in para. 1 sentence 1 are otherwise fulfilled and the transmittal is suitable:
1. to begin a proceeding before the Court.
2. to support a proceeding already begun there, or
3. to prepare a request for mutual assistance of the Court.
Para. 1 sentence 2 and 3 apply mutatis mutandis.
(3) If the Court requests the transmittal of information that a German court or a German governmental authority received from a foreign state or an intergovernmental or supra-national entity with the request that it treat the information confidentially, the information shall not be transmitted to the Court as long as there is no agreement by the originator pursuant to Article 73 sentence 1 of the Rome Statute. The Court shall be informed.

Part 6 Outgoing Requests

§ 64 Form and Content of the Request
(relating to Article 93 para. 10, Article 96 para. 4 of the Rome Statute)

A request made to the Court pursuant to Article 93 para. 10(a) of the Rome Statute for mutual assistance or surrender of persons, as well as the accompanying documents, must have the prescribed form set forth in Article 96 para. 1 in connection with para. 4 of the Rome Statute and the content set forth in Article 96 para. 2 in connection with para. 4 of the Rome Statute.

§ 65 Return of Surrendered Person

(1) When a person is temporarily surrendered by the Court for a criminal proceeding against him in Germany upon request and on the condition that the person will be returned later, the person shall be returned at the agreed time to the Court or to the authorities of a state designated by it, insofar as the Court has not waived this. Prior to implementation of the temporary surrender, arrest of the suspect will be ordered in a written arrest warrant when the Court makes the surrender dependent upon the conduct in custody or when the return otherwise would not be guaranteed. The detention served based upon an order pursuant to the second sentence shall be set-off against detention imposed in a German criminal proceeding corresponding to § 51 of the Criminal Code.
(2) § 55 para. 2 applies mutatis mutandis to the arrest warrant. Otherwise § 13 para. 3, § 14 para. 1, 2 sentence 1 and 3, para. 5, §§ 18 and 55 para. 3 – 5 apply mutatis mutandis. The Higher Regional Court shall decide regarding objections to the arrest warrant for return surrender or a motion to quash such order only after execution of the arrest based upon the arrest warrant for return surrender.
(3) The arrest decision shall be made by the Higher Regional Court in whose district the court that is involved with the domestic criminal proceedings is located and, prior to commencement of the public action, the Higher Regional Court in whose district the public prosecution office leading the proceedings is located. The ruling is non-appealable. The public prosecution office attached to the Higher Regional Court that has jurisdiction per sentence 1 is responsible for ordering and implementing the return surrender.

§ 66 Temporary Surrender for a German Proceeding

(1) When a person is in pretrial detention or imprisoned based upon an order of the Court and was temporarily transferred based upon a request by a German court or a German authority made on condition of later return surrender for a domestic criminal proceeding against another for the taking of evidence, he will be returned at an agreed point in time to the Court or the authorities of a state designated by it insofar as the Court has not waived this. Prior to execution of the temporary surrender, arrest of the suspect will be ordered in a written arrest warrant when the Court makes the surrender dependent upon the conduct in custody or when the return surrender otherwise would not be guaranteed. 55 para. 2 applies mutatis mutandis to the arrest warrant. Otherwise, § 13 para. 3, § 14 para. 1, 2 sentence 1 and 3, para. 5, §§ 18 and 55 para. 3 – 5, as well as § 65 para. 3 apply mutatis mutandis.
(2) When a person is in pretrial detention or imprisoned in Germany or detained based upon an order of measures for the prevention of crime and the reformation of offenders (Maßregel der Besserung und Sicherung), he may be temporarily transferred to the Court for a domestic criminal proceeding when the prerequisites in § 54 sentence 1 number 1, 3, and 4 are met. § 49 para. 4 sentence 2 and 3, as well as § 54 sentence 2 – 5 apply mutatis mutandis.

§ 67 Conditions

Conditions that the Court has tied to the mutual assistance shall be complied with.

Part 2
Surrender of Persons

§ 4
Requests for Surrender and Requests for Extradition
(relating to Article 90 of the Rome Statute)

(1) If a foreign state requests extradition of a person on the basis of a criminal act over which the Court has jurisdiction, the Court may be informed of the submission of the request. Upon request, the Court will be given a copy of the extradition request and the accompanying documents, when the foreign state does not object to the transmittal and the transmittal does not contradict other international law agreements.

This provision is wider than the ICC Statute.

 

The German Law on Cooperation with the ICC provides for the protection of the confidentiality of personal data of suspect or of third party that might be communicated to the ICC. When the ICC assures a witness that his testimony will not be used, information provided cannot be used in German proceedings. If there is an obligation to provide information under the Rome Statute but there is no provision permitting the provision of the same information under German law, the provision of information might be refused. German courts can use the information provided to the ICC only with consent of the witness. The Law on Cooperation with the ICC provides for the transmission to the ICC of intelligence information. If such information has been received from a foreign state or international organisation, its consent to the transmission is necessary.