CHAPTER III: SURRENDER OF PERSONS BEING PROSECUTED AND OF PERSONS CONVICTED BY THE COURT

SECTION I: CONDITIONS

Art. 16 Principle

1 A person shall be surrendered to the Court if the request and supporting documentation
indicate that the act is within the jurisdiction of the Court.
2 If the Court is considering a challenge to its jurisdiction in accordance with articles 17-
19 of the Statute, the Central Authority may postpone the execution of a request until the
Court has decided.

3 If a Swiss citizen is surrendered to the Court, the Central Authority shall request the repatriation of the citizen upon completion of the proceedings.

Art. 17 Content and documentation of the request

1 A request for arrest and surrender of a person for whom the Court has issued a warrant of arrest shall include:
a. a description of the person, sufficient to identify the person, and information as to that person’s probable location;
b. a copy of the warrant of arrest;
c. the reason for arrest.

2 A request for the arrest and surrender of a person already convicted shall include:
a. a copy of the warrant of arrest;
b. a copy of the judgment of conviction;
c. if the person has been sentenced, a copy of the sentence imposed and, in the case of a sentence of imprisonment, a statement of any time already served and the time remaining to be served.

3 The request shall be accompanied by:
a. a concise statement of the relevant facts sufficient for a legal assessment of the act;
b. the applicable provisions of the Statute and of the Rules of Procedure and Evidence of
the Court.

SECTION II: DETENTION PENDING SURRENDER AND SEIZURE

Art. 18 Search, arrest and seizure

1 Requests for search and arrest shall contain:
a. information as accurate and complete as possible describing the person sought, including information as to the person’s probable location;
b. a short statement of the facts including, where possible, the date and place of the act;
c. a statement of the existence of a valid warrant of arrest or a judgment of conviction against the person;
d. a statement that a request for surrender will follow.

2 If the Central Authority honors the request, it shall initiate a search for the person and order the arrest and, if necessary, search of the person.

3 Upon arrest, objects and assets shall be seized that may serve as evidence in proceedings before the Court or that derive from the criminal act.

4 Arrest and seizure shall be reported to the Central Authority. The Central Authority shall inform the Court immediately and ask the Court to make a request for surrender.

Art. 19 Warrant for arrest pending surrender

1 In anticipation of arrest or immediately after arrest the Central Authority shall issue a warrant for arrest pending surrender. The warrant shall include:
a. information concerning the person being prosecuted and the alleged act;
b. notification that the Court is asking for the surrender of the person;
c. notice of the right to appeal as provided in paragraph 4 and of the right to counsel.

2 If the person is not fit to remain in detention or if otherwise justified, the Central Authority may, after informing the Court and giving full consideration to the Court’s recommendations, order security measures other than detention.

3 Upon presentation of the warrant for detention pending surrender, the executing authorities shall ascertain whether the person is identical to the person designated in the request. The authorities shall explain to the person the conditions for surrender and for simplified surrender (art. 23). The person shall be questioned briefly regarding personal circumstances and whether and for what reasons the person objects to the warrant or to the surrender; the person’s counsel may assist at this hearing.

4 The warrant for detention pending surrender may be appealed within ten days of written presentation of the warrant; appeals must be lodged with the Federal Supreme Court. Articles 214 et seq. of the Federal Law of 15 June 1934 on Federal Criminal Procedure shall apply by analogy.

Art. 20 Detention pending surrender

1 Detention pending surrender generally shall be maintained throughout the proceedings.

2 Detention may exceptionally be lifted at any stage of the proceedings if it appears justified under the circumstances. The person may at any time submit an application for interim release. Before reaching a decision, the Central Authority shall inform the Court and give full consideration to the Court’s recommendations. The decision of the Central Authority may be appealed within ten days of written presentation of the decision; appeals must be lodged with the Federal Supreme Court. Articles 214 et seq. of the Federal Law of 15 June 1934 on Federal Criminal Procedure shall apply by analogy.

3 If the person already is being held in pre-trial detention or is serving a prison sentence, the warrant for detention pending surrender shall have the following effects in particular, subject to other instructions of the Court:
a. Without approval of the Central Authority, the person may neither be released nor deported from Switzerland.
b. Approval of the Central Authority shall be necessary for alleviation of the conditions of detention.
c. Visitation rights may only be granted and correspondence may only be censored in agreement with the Central Authority.

Art. 21 Release from detention pending surrender

1 If the request for surrender and supporting documentation are not received by the Central Authority, the Central Authority shall release from the detention pending surrender at the latest 60 days after the arrest.

2 If the person already is being held in pre-trial detention or is serving a prison sentence, the period of time in paragraph 1 shall begin upon transfer into detention pending surrender.

3 A release from detention as provided in paragraph 1 shall not prejudice subsequent arrest and surrender, if the request for surrender and supporting documentation are transmitted at a later time.

4 Articles 53–60 of the Federal Law of 15 June 1934 on Federal Criminal Procedure shall apply by analogy to suspension of detention.

SECTION III: DECISION TO SURRENDER

Art. 22 Right to be heard

1 The request for surrender and supporting documentation shall be submitted to the further person being prosecuted and, if applicable, to the person’s counsel.

2 The executing authorities shall explain to the person the conditions for surrender and for simplified surrender; the executing authorities shall also inform the person of the right:
a. to challenge the jurisdiction of the Court;
b. to be defended by counsel of the person’s choosing or, if the person does not have counsel, to have the Central Authority assign counsel or, if applicable, an official counsel.

3 The person shall be questioned briefly regarding personal circumstances and whether and for what reasons the person objects to the surrender; the person’s counsel may assist at this hearing.

Art. 23 Simplified surrender

1 If the person being prosecuted waives the right to surrender proceedings and has the waiver put on record, the Central Authority shall authorize the surrender, unless there are exceptional misgivings.

2 The Central Authority may request the Court to supply the documentation specified in article 17, if the Central Authority deems this documentation necessary for authorization of the surrender.

3 The person may revoke the waiver in paragraph 1, as long as the Central Authority has not authorized the surrender.

Art. 24 Authorization of surrender

1 The Central Authority shall authorize the surrender of the person being prosecuted and the transmission of the seized objects and assets.

2 If the person or the Central Authority challenges the jurisdiction of the Court, the authorization shall be postponed until the Court has decided.

3 If third parties who have acquired rights in good faith, authorities, or victims whose usual residence is in Switzerland assert rights with regard to the seized objects or assets that may serve as evidence, their handing over shall be subject to the condition that the Court gives the guarantee to return them without cost after conclusion of the proceedings.

Art. 25 Execution of the surrender

1 The surrender shall be executed immediately. The Central Authority shall issue the necessary orders in agreement with the Court.

2 The Central Authority may postpone the execution of the surrender by a period of time agreed upon with the Court, if the person to be surrendered is being prosecuted in Switzerland for another criminal act or if the person is in detention.

3 If the surrender is denied, the Central Authority shall lift the detention pending surrender.

Art. 26 Temporary transfer

1 When article 24 paragraph 2 or article 25 paragraph 2 applies, the Central Authority may authorize temporary transfer of the person, if consultations with the Court indicate:
a. how long the Court requires the person;
b. that the person will remain in detention for the entire duration;
c. which proceedings the imprisonment will be counted toward;
d. that the person will be returned after completion of the proceedings, upon request of the Central Authority.

2 Until the Central Authority has decided on surrender, temporary transfer may only be undertaken in agreement with the person to be transferred.

Art. 27 Rule of speciality
A person surrendered to the Court may be prosecuted, punished, or detained by the Court for any act within its jurisdiction.

Art. 28 Costs

Personal property of the person being prosecuted may be used to cover Swiss costs, to the extent the property is not to be transmitted to the Court.

Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.
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.