Part 5 Additional Mutual Assistance

§ 49 Jurisdiction

(1) To the extent mutual assistance is to be provided by a public prosecution office, local jurisdiction lies with the public prosecution office in whose district the mutual assistance shall be provided. Should the provision of mutual assistance be required in the districts of different public prosecution offices, jurisdiction lies with the public prosecution office that was first involved in the matter. For as long as jurisdiction under sentence 1 or sentence 2 cannot be determined, jurisdiction is determined by the seat of the federal government.
(2) Para. 1 applies mutatis mutandis to the jurisdiction of the court to the extent judicial action for the provision of mutual assistance is required or when other judicial decisions are to be made.
(3) The Higher Regional Court is responsible for judicial decisions regarding the surrender of property pursuant to § 50 para. 1 sentence 2, for an order of search and seizure of objects (§ 52 para. 1 and 2) and a seizure of assets (§ 52 para. 4), for a decision on detention in the case of a temporary assumption of jurisdiction over a suspect (§ 55 para. 1) and a transfer (§ 55 para. 6) as well as for court orders in the case of telecommunications surveillance (§ 59 para. 1) and for covert measures (§ 59 para. 2). In the case of a temporary assumption of jurisdiction over a suspect, venue lies with the Higher Regional Court in whose district the office that will provide the mutual assistance is located. In the case of a transfer, § 31 para. 2 and 3 apply mutatis mutandis.
(4) Insofar as the jurisdiction of the court is well-founded, the public prosecution office attached to the Higher Regional Court shall prepare the decision and take the measures necessary for its implementation. It is also responsible for ordering and implementing a temporary surrender (§ 54), the preparation of a decision regarding approval of the surrender of objects and the implementation of the approved surrender. In the case of a temporary surrender, local jurisdiction lies with the public prosecution office attached to the Higher Regional Court in whose district the incarceration shall be carried out.

§ 50 Judicial Decision

(1) Mutual assistance in cases under § 52 para. 1, 2, and 4, § 55 para. 1 and 6, and § 59 para. 1 and 2, shall only be approved when the Higher Regional Court has issued the required measures for providing the assistance. The Higher Regional Court shall further decide on the permissibility of the surrender of objects upon motion of the public prosecution office attached to the Higher Regional Court or upon motion of one who shows that the surrender will result in injury to his rights. Decisions of the Higher Regional Court are non-appealable.
(2) As to proceedings before the Higher Regional Court, § 20 para. 2 and 3, § 21 para. 1 and 4, §§ 22, 29 para. 4 sentence 2, § 31 para. 1, § 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. For the additional proceedings, § 23 para. 1, 2, and 4, with the exception that instead of the motion of the suspect referred to in § 23 para. 1, the motion of a party affected by measures pursuant to §52 para. 1, 2, or 4 applies, and regardless of the presence of the prerequisites in § 23 para. 1 and 2, also upon the motion of the affected party, a renewed ruling on the provision of the mutual assistance shall be issued, when the affected party is not heard prior to the first time the measures are ordered.
(3) If a court other than the Higher Regional Court is responsible for providing the mutual assistance and finds that the prerequisites for providing mutual assistance are not met, it shall justify its opinion and shall obtain a ruling by the Higher Regional Court. The Higher Regional Court decides further upon a motion by the public prosecution office attached to the Higher Regional Court regarding whether the prerequisites for the provision of mutual assistance have been met. The mutual assistance shall not be approved when the Higher Regional Court has ruled that the prerequisites for the provision of mutual assistance have not been met. The ruling by the Higher Regional Court is binding on the courts and governmental authorities responsible for the provision of mutual assistance.
(4) As to proceedings before the Higher Regional Court, § 20 para. 2 and 3, § 21 para. 1 and 4, §§ 22, 23 para. 1, 2, and 4, § 29 para. 4 sentence 2, § 31 para. 1, §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.

Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the
jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.

This provision follows the ICC Statute.