Part 3 Transit
§ 34 Principle
(relating to Article 89 para. 3 of the Rome Statute)
Persons, whose transit has been requested by the Court or, with its agreement, the state from which the suspect shall be surrendered to the Court (state of surrender) or the state of enforcement, shall be transported through Germany for criminal prosecution or execution of a criminal penalty in accordance with the Statute and this law.
§ 35 Transit Documents
(relating to Article 89 para. 3 of the Rome Statute)
(1) Transit to the Court pursuant to Article 89 para. 3 of the Rome Statute for criminal prosecution or execution of a criminal penalty upon request of the Court is permissible only when the documents set out in Article 89 para. 3 (b)(i) – (iii) of the Rome Statute have been presented.
(2) For transit to the state of enforcement, in addition to the documents set forth in Article 89 para. 3 of the Rome Statute, a certificate from the state of enforcement stating its agreement with the execution of the penalty imposed by the Court or a statement by the Court that the state of enforcement is in agreement with the enforcement must be presented.
(3) If the state of surrender requests transit to the Court or the state of enforcement requests transit for the execution of a penalty imposed by the Court, in addition to the documents required in paragraph 1 and, in the case of transit to the state of enforcement, paragraph 2, a statement by the Court shall be included, stating its agreement with the request.
§ 36 Jurisdiction
(1) Judicial decisions shall be made by the Higher Regional Court. § 7 para. 1 sentence 1 and para. 2 apply mutatis mutandis.
(2) Local jurisdiction is
1. in the case of transit over land or sea, the Higher Regional Court in whose district the suspect will probably be surrendered within the scope of this law,
2. in the case of transit by air, the Higher Regional Court in whose district the first landing will occur.
(3) If jurisdiction pursuant to para. 2 number 2 is unfounded, jurisdiction shall lie with the Higher Regional Court in Frankfurt am Main.
§ 37 Transit Proceedings
(relating to Article 89 para. 3(c) of the Rome Statute)
(1) If the transit appears to be permissible, the suspect will be detained to ensure it.
(2) The detention will be ordered via a written arrest warrant (Durchbeförderungshaftbefehl) of the Higher Regional Court. § 12 para. 2, § 20 para. 2 apply mutatis mutandis.
(3) Transit shall only be approved when an arrest warrant for transit has been issued.
(4) The suspect shall be informed of the arrest warrant for transit promptly upon his entry into Germany. The suspect shall receive a copy.
(5) If it appears that the transit cannot be completed by the end of the day following the surrender, the suspect shall promptly, at the latest the day after his entry into Germany, be brought before a judge of the next District Court. The judge of the District Court shall examine him regarding his personal circumstances, in particular, regarding his citizenship. He shall inform him that at each stage of the proceedings he may use legal assistance and that it is up to him whether or not to make statements regarding the criminal act he is accused of committing. He shall then question him whether and, if necessary, upon which grounds he seeks to raise objections to the arrest warrant for transit or to the permissibility of the transit; § 14 para. 5 and § 16 apply mutatis mutandis.
(6) § 12 para. 3, §§ 18, 23 para. 1, 2, and 5, and § 33 apply mutatis mutandis. §17 applies with the exception that instead of a two month deadline, a one month deadline shall apply. § 31 applies with the exception that legal assistance shall be ordered when:
1. because of the difficulty of the factual or legal situation the involvement of legal assistance seems advisable, or
2. it is obvious that the suspect is incapable of sufficiently protecting his rights.
(7) Objects that were taken in regard to the transit may be surrendered concurrently with the surrender of the suspect without a specific request.
§ 38 Repeated Transit
(1) If the first transit for surrender of the suspect to the Court is approved, the suspect may upon request, which refers to the documents transmitted in relation to the first transit, without a renewed decision of approval, for execution of a penalty imposed by the Court, also be surrendered to the state of enforcement when a certificate of the state of enforcement stating its agreement with the execution of the penalty imposed by the Court or a statement of the Court in which the state of enforcement is in agreement with the execution is presented. Sentences 1 and 2 are also applicable to additional transit instances.
(2) In a case under para. 1, the arrest warrant for transit shall also apply to additional instances of transit.
(3) Paragraphs 1 and 2 are, in the case of a return of the surrendered person subsequent to a temporary surrender to the state of surrender, applicable to the extent the circumstances of the later return of the surrendered person was recognizable at the time of the first transit.
§ 39 Unscheduled Landing
(relating to Article 89 para. 3(e) of the Rome Statute)
(1) In the case of an unscheduled landing in Germany, the office that first knew of the landing and is involved based upon this law shall promptly inform the Court and the office responsible pursuant to § 68 para. 1 of the landing. The office responsible pursuant to § 68 para. 1 shall ask the Court for a transit request in accordance with Article 89 para. 3 (b) of the Rome Statute. The public prosecutor and the officers of the police force are authorized to conduct the provisional arrest.
(2) The suspect shall promptly, no later than the day after the arrest, be brought before a judge of the next District Court. He shall be released from detention by the judge when, 96 hours have passed since the unscheduled landing without a transit request or the necessary documents having been received by the office responsible pursuant to § 68 para. 1.
(3) In addition, §§ 35-35 apply mutatis mutandis.
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