Part 2 Surrender of Persons

§ 27 Temporary Surrender
(relating to Article 89 para. 4 of the Rome Statute)

(1) If the approved surrender is postponed because there is a domestic criminal proceeding against the suspect or incarceration or measures for the prevention of crime and the reformation of offenders (Maßregel der Besserung und Sicherung) are to be executed, the suspect may be temporarily surrendered when the Court guarantees to return him at a particular point in time.
(2) Return of the suspect may be waived.
(3) If, in the proceedings for which the surrender was postponed, a fixed term of incarceration or a fine is imposed, the detention served up until the return or a waiver of return will be set-off in the proceedings before the Court. If the surrender is postponed because a fixed term of imprisonment is to be enforced against the suspect, the first sentence applies as appropriate.
(4) The office responsible for calculating the time spent in custody referred to in para. 3 shall determine the standards at its own discretion after a hearing with the public prosecution office attached to the Higher Regional Court. It may order that the set-off either completely or partially not occur when:
1. the deprivation of liberty ordered by the Court already completely or partially accounts for a punishment imposed or to be enforced by it, or
2. the set-off, in light of the conduct of the suspect after his surrender, is not justified.

Article 89
Surrender of persons to the Court
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Article 97
Consultations
Where a State Party receives a request under this Part in relation to which it identifies
problems which may impede or prevent the execution of the request, that State shall consult with
the Court without delay in order to resolve the matter. Such problems may include, inter alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact that despite best efforts, the person
sought cannot be located or that the investigation conducted has determined that the person in the
requested State is clearly not the person named in the warrant; or
(c) The fact that execution of the request in its current form would require the
requested State to breach a pre-existing treaty obligation undertaken with respect to another State.

This provision follows the ICC Statute.