Part 2
Specific provisions
Section 4
Custody pending surrender, surrender and transit

23. Offer of surrender
1. Provided there are sufficient grounds to suspect a person thought to be in Austria of a crime within the jurisdiction of the International Criminal Court, and the conditions in paragraph 5(2) above do not apply, after the person has been questioned by the investigating judge, the public prosecutor shall apply to the judge for a report outlining the facts of the case to be submitted to the Federal Ministry of Justice.
2. The Federal Ministry of Justice shall enquire whether the International Criminal Court requires the person to be surrendered. If the accused person is in custody, an appropriate deadline will be set for receipt of the request for surrender. Should the latter not arrive in time, the investigating judge should be informed promptly thereof.
3. The above is without prejudice to the provisions concerning the offer of surrender to the State in which the crime was committed pursuant to paragraph 28(1) of the law on extradition and judicial assistance (ARHG).

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 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.