Part 2
Specific provisions

Section 4
Custody pending surrender, surrender and transit

26. Custody pending surrender and orders for surrender

1. In the event of a request from the International Criminal Court for the arrest and surrender of an accused person, on application by the public prosecutor, the investigating judge shall initiate the surrender procedure and order the arrest of the accused person, his or her custody pending surrender and, in accordance with the following paragraphs, his or her surrender to the International Criminal Court. The investigating judge shall not have competence to consider the allegations giving rise to the arrest warrant or the grounds therefor. 10
2. Should there be significant doubts as to the identity of the person arrested, the investigating judge shall order appropriate investigations or ask the International Criminal Court to submit additional information. In any event, the investigating judge shall inform the accused person of the grounds of the warrant of arrest issued against him or her by the International Criminal Court and about his or her rights to challenge the surrender on account of a violation of the principle of “ne bis in idem” in article 20 of the Statute or of a lack of jurisdiction on the part of the International Criminal Court pursuant to articles 17 to 19 of the Statute. In addition, the person shall be informed of his or her right, pending a surrender order, to apply for interim release. The accused person shall be provided with copies (photocopies) of the arrest warrant or of the relevant allegations and provisions of the Statute together with the translations of them provided by the International Criminal Court.
3. Should the accused person wish to challenge the surrender on account of a violation of article 20 of the Statute or a lack of jurisdiction on the part of the International Criminal Court, the International Criminal Court shall be informed thereof and be provided with the requisite documents. Concurrently, the Court shall be notified of whether the challenge has a suspensive effect.
4. The decision on surrender shall be deferred only in the event of a challenge of admissibility pursuant to paragraph 5(2) above until a decision by the International Criminal Court has been taken. In the event of a challenge to the jurisdiction of the Court pursuant to articles 17 to 19 of the Statute by a third country, the procedure in paragraph 28 below shall apply.
5. Until surrender is ordered, the accused person has the right to apply for interim release. When deciding on such an application it shall be ascertained whether there are urgent and exceptional circumstances which justify interim release and whether the purpose of detention may be achieved by more lenient means (paragraph 180(5) of the Code of Criminal Procedure) regardless of the gravity of the alleged crimes. Such an application shall have no suspensive effect.
6. An application pursuant to paragraph 5 shall be notified to the International Criminal Court indicating that it has the right to submit a recommendation within seven days. The recommendation shall be taken into consideration in the decision on the application for release.
7. Should the International Criminal Court in its recommendation or the public prosecutor plead against the release of the accused person, the investigating judge shall promptly decide on the application in a custody hearing.
8. A decision dismissing the application for interim release by the accused person may be appealed against by the latter within three days before the relevant appeals court. Such an appeal shall have no suspensive effect.
9. Orders into custody pending surrender and orders for surrender may be appealed against solely pursuant to paragraph 1 of the Constitutional Appeals Law (Austrian Federal Law Gazette 864/1992). The order initiating the surrender process is not open to appeal.


27. Transfer to the International Criminal Court

1. Once the order for surrender to the International Criminal Court is enforceable, the investigating judge shall instruct the custodial authorities to promptly transfer the person to be surrendered to the International Criminal Court. Unless there are serious security concerns or the International Criminal Court seeks another form of delivery, the person to be surrendered shall be conveyed by air under the escort of Austrian officials. 11
2. The time of surrender shall be agreed with the International Criminal Court. Should circumstances prevent the transfer of the person to be surrendered, a new time will be agreed for the surrender.
3. The investigating judge shall submit a copy of the order for surrender to the Federal Ministry of Justice for onward transmission to the International Criminal Court.

Article 87
Requests for cooperation: general provisions
1. (a) The Court shall have the authority to make requests to States Parties for
cooperation. The requests shall be transmitted through the diplomatic channel or any other
appropriate channel as may be designated by each State Party upon ratification, acceptance,
approval or accession.
Subsequent changes to the designation shall be made by each State Party in accordance
with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of subparagraph (a),
requests may also be transmitted through the International Criminal Police Organization or any
appropriate regional organization.
2. Requests for cooperation and any documents supporting the request shall either be in or be
accompanied by a translation into an official language of the requested State or one of the working
languages of the Court, in accordance with the choice made by that State upon ratification,
acceptance, approval or accession.
Subsequent changes to this choice shall be made in accordance with the Rules of
Procedure and Evidence.
3. The requested State shall keep confidential a request for cooperation and any documents
supporting the request, except to the extent that the disclosure is necessary for execution of the
request.
4. In relation to any request for assistance presented under this Part, the Court may take such
measures, including measures related to the protection of information, as may be necessary to
ensure the safety or physical or psychological well-being of any victims, potential witnesses and
their families. The Court may request that any information that is made available under this Part
shall be provided and handled in a manner that protects the safety and physical or psychological
well-being of any victims, potential witnesses and their families.
5. (a) The Court may invite any State not party to this Statute to provide assistance under
this Part on the basis of an ad hoc arrangement, an agreement with such State or any other
appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc
arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such
arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the
Security Council referred the matter to the Court, the Security Council.
6. The Court may ask any intergovernmental organization to provide information or
documents. The Court may also ask for other forms of cooperation and assistance which may be
agreed upon with such an organization and which are in accordance with its competence or
mandate.
7. Where a State Party fails to comply with a request to cooperate by the Court contrary to
the provisions of this Statute, thereby preventing the Court from exercising its functions and
powers under this Statute, the Court may make a finding to that effect and refer the matter to the
Assembly of States Parties or, where the Security Council referred the matter to the Court, to the
Security Council.

Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available under their national law for
all of the forms of cooperation which are specified under this Part.

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.

Article 90
Competing requests
1. A State Party which receives a request from the Court for the surrender of a person under
article 89 shall, if it also receives a request from any other State for the extradition of the same
person for the same conduct which forms the basis of the crime for which the Court seeks the
person’s surrender, notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the
request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in
respect of which surrender is sought is admissible and that determination takes into account the
investigation or prosecution conducted by the requesting State in respect of its request for
extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the
requested State’s notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may,
at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal
with the request for extradition from the requesting State but shall not extradite the person until the
Court has determined that the case is inadmissible. The Court’s determination shall be made on an
expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall give priority
to the request for surrender from the Court, if the Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Curt, the
requested State may, at its discretion, proceed to deal with the request for extradition from the
requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing
international obligation to extradite the person to the requesting State not Party to this Statute, the
requested State shall determine whether to surrender the person to the Court or extradite the
person to the requesting State. In making its decision, the requested State shall consider all the
relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime
was committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting
State.
7. Where a State Party which receives a request from the Court for the surrender of a person
also receives a request from any State for the extradition of the same person for conduct other than
that which constitutes the crime for which the Court seeks the person’s surrender:
(a) The requested State shall, if it is not under an existing international obligation to
extradite the person to the requesting State, give priority to the request from the Court;
(b) The requested State shall, if it is under an existing international obligation to
extradite the person to the requesting State, determine whether to surrender the person to the Court
or to extradite the person to the requesting State. In making its decision, the requested State shall
consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall
give special consideration to the relative nature and gravity of the conduct in question.
8. Where pursuant to a notification under this article, the Court has determined a case to be
inadmissible, and subsequently extradition to the requesting State is refused, the requested State
shall notify the Court of this decision.

Article 91
Contents of request for arrest and surrender
1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may
be made by any medium capable of delivering a written record, provided that the request shall be
confirmed through the channel provided for in article 87, paragraph 1 (a).
2. In the case of a request for the arrest and surrender of a person for whom a warrant of
arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be
supported by:
(a) Information describing the person sought, sufficient to identify the person, and
information as to that person’s probable location;
(b) A copy of the warrant of arrest; and
(c) Such documents, statements or information as may be necessary to meet the
requirements for the surrender process in the requested State, except that those requirements
should not be more burdensome than those applicable to requests for extradition pursuant to
treaties or arrangements between the requested State and other States and should, if possible, be
less burdensome, taking into account the distinct nature of the Court.
3. In the case of a request for the arrest and surrender of a person already convicted, the
request shall contain or be supported by:
(a) A copy of any warrant of arrest for that person;
(b) A copy of the judgement of conviction;
(c) Information to demonstrate that the person sought is the one referred to in the
judgement of conviction; and
(d) If the person sought has been sentenced, a copy of the sentence imposed and, in
the case of a sentence for imprisonment, a statement of any time already served and the time
remaining to be served.
4. Upon the request of the Court, a State Party shall consult with the Court, either generally
or with respect to a specific matter, regarding any requirements under its national law that may
apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the
specific requirements of its national law.

Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending
presentation of the request for surrender and the documents supporting the request as specified in
article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a
written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and
information as to that person’s probable location;
(b) A concise statement of the crimes for which the person’s arrest is sought and of the
facts which are alleged to constitute those crimes, including, where possible, the date and location
of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction
against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State
has not received the request for surrender and the documents supporting the request as specified in
article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the
person may consent to surrender before the expiration of this period if permitted by the law of the
requested State. In such a case, the requested State shall proceed to surrender the person to the
Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3
shall not prejudice the subsequent arrest and surrender of that person if the request for surrender
and the documents supporting the request are delivered at a later date.