Part 2
Specific provisions
Section 5
32. Enforcement of sentences of imprisonment
General provisions
1. Through a statement addressed to the International Criminal Court, the Federal Minister of Foreign Affairs may, with the consent of the Federal Minister of Justice, state Austria’s willingness to accept sentenced persons for the enforcement of sentences of imprisonment passed by the International Criminal Court. The statement may set a limit on the time for transfer for enforcement and on the number and kind of sentenced persons.
2. The sentences of imprisonment passed by the International Criminal Court shall be enforced directly. Sentences passed by the International Criminal Court may not be modified. In the light of instructions from the International Criminal Court, enforcement shall be subject to the relevant provisions of Austrian law on the understanding that the conditions of detention correspond to those under which persons convicted of similar crimes are held in Austria.
3. The enforcement of sentences of imprisonment passed by the International Criminal Court shall be subject to the supervision of the Court. At the request of the International Criminal Court, its members shall be granted access to prisons.
4. Should a person serving a sentence of imprisonment imposed by the International Criminal Court in Austria be eligible under Austrian law for more lenient treatment involving unguarded work outside the prison, the International Criminal Court shall be informed thereof before such work is allowed. Its opinion shall be taken into consideration in the decision.
5. Sentenced persons within the meaning of this section are to be granted unimpeded and confidential written communication with the International Criminal Court.
33. Procedure for the acceptance of enforcement of sentences
1. Should the International Criminal Court decide that a convicted person shall serve his or her sentence of imprisonment in Austria and seek the transfer of the convicted person for the enforcement of his/her sentence, it should address itself to the Federal Minister of Justice.
2. The Federal Minister of Justice may only refuse to accept a person for the enforcement of his or her sentence, which as stated complies with paragraph 32(1) above, if it would give rise to unacceptable consequences for the security and public order of the Republic of Austria. Enforcement of the sentences of Austrian nationals may not be refused. The decision of the Federal Minister of Justice is not open to appeal.
3. The decision by the Federal Minister of Justice shall be transmitted to the International Criminal Court with a request to suggest a time and place for the transfer of the sentenced person to the Austrian authorities.
4. Should the sentenced person escape from prison before the expiry of the sentence, the court of enforcement (paragraph 16 of the law on enforcement of sentences) shall issue a warrant of arrest and initiate a search. Should the person sought subsequently be arrested abroad, the court shall, even without an application from the public prosecutor, seek extradition custody pursuant to paragraph 69 of the law on extradition (ARHG) and transmit the documents required under paragraph 68 of the said law to the Federal Minister of Justice. The Federal Minister of Justice shall seek extradition if the requested State does not approve surrender without an extradition procedure, and the International Criminal Court has not decided otherwise.
5. The time spent in custody in the requested State or at the International Criminal Court shall be deducted from the sentence to be served.
6. Should persons who have escaped while serving a sentence passed by the International Criminal Court be arrested in Austria, they shall be surrendered to the State ensuring the enforcement of their sentence according to the provisions which apply for the surrender of persons to the International Criminal Court.
34. Speciality of enforcement
1. A convicted person transferred to Austria for the enforcement of a sentence passed by the International Criminal Court may not be prosecuted, punished, detained or extradited to a third country on account of an act engaged in prior to the said transfer, which was not part of the judgement of the International Criminal Court, without its consent.
2. The speciality of enforcement shall not preclude such a measure if:
(1) following release, the person did not leave the territory of the Republic of Austria within 30 days, even though he or she was able and free to do so;
(2) the person leaves the territory of the Republic of Austria, by whatever means, and returns voluntarily, or is returned legally from a third country; or
(3) the International Criminal Court forgoes applying the rule of speciality.
35. Reports about enforcement
At least once a year, and on completion of the sentence, the prison at which the convicted person is serving the sentence of imprisonment passed by the International Criminal Court shall submit a conduct and health report to the Federal Ministry of Justice. The Federal Ministry of Justice is to be notified at once if the convicted person escapes before the expiry of the sentence or if enforcement is no longer possible for other reasons. The International Criminal Court shall promptly be acquainted with such reports.
36. Conditional release and pardon
1. (Constitutional provision) Decisions regarding the conditional release, pardon or reduction of sentence of a person sentenced by the International Criminal Court shall be taken by the International Criminal Court.
2. Should the convicted person make an application for conditional release, pardon or a reduction of sentence, it shall be submitted to the Federal Ministry of Justice for forwarding to the International Criminal Court.
3. The International Criminal Court should be informed ex-officio of any circumstances which are favourable for conditional release, pardon or a reduction of sentence.
37. Transfer of enforcement of sentences to another State
1. Any request from the International Criminal Court for the surrender of the sentenced person to another State for the continuation of the enforcement of a sentence shall be promptly complied with.
2. Should a sentenced person ask to serve his or her sentence of imprisonment in another State, the request should be forwarded to the International Criminal Court.
38. Termination of sentences of imprisonment
1. Should the International Criminal Court indicate that the enforcement of a sentence of imprisonment should be terminated, the sentenced person shall be released promptly, or be transferred to the authority responsible for the enforcement of foreign orders, unless Austrian criminal proceedings or extradition proceedings are underway, or grounds exist to initiate such proceedings.
2. Prosecution, punishment or extradition on account of an act engaged in prior to the acceptance of the enforcement of sentences may only proceed consistent with paragraph 34 above.
39. Costs
1. The ordinary costs of enforcement of sentences shall be borne by Austria.
2. Other costs, including the cost of surrender of the sentenced person from or to the Court or from one State of enforcement to another and the cost of expert opinions or reports requested by the International Criminal Court shall be borne by the International Criminal Court.
40. Enforcement of sentences of imprisonment for offences against the administration of justice
Having regard to the enforcement of sentences of imprisonment imposed by the International Criminal Court for offences against the administration of justice pursuant to article 70 of the Statute, this federal law, with the exception of the provisions in paragraphs 32(1) and (5), 33(1) to (5), and 39 above, shall not apply. The procedure shall comply with paragraphs 65 to 67 of the law on extradition and judicial assistance (ARHG).
Section 6
41. Acceptance of enforcement of fines and forfeiture measures
1. The competent court shall comply with requests from the International Criminal Court for the enforcement of orders involving fines or forfeiture measures if it appears likely that the fine can be collected in Austria or if the objects or assets referred to in 15 the order are to be found in Austria. Prior to approving such enforcement, the person ordered to pay the fine and persons claiming rights to the objects or assets shall be heard. The sentenced person need not be heard where he or she cannot be reached.
2. The decision on a request for enforcement of a fine shall be taken by the Court of First Instance as referred to in paragraph 26(1) of the law on extradition and judicial assistance (ARHG); the decision concerning a request for a forfeiture measure shall however be taken by the Court of First Instance of the district in which the asset or object is to be found, in each case by a panel of three judges (paragraph 13(3) of the Code of Criminal Procedure) by way of a court decision. The fine or forfeiture measure ordered by the International Criminal Court may not be modified. The court decision may be appealed against by the public prosecutor or the person concerned within 14 days before the Court of Appeal.
3. A fine ordered by the International Criminal Court shall be enforced in euros. The official exchange rate as of the day of the International Criminal Court’s order shall be used should the amount of the fine to be enforced be stated in a currency other than euros.
4. Any payment facilities granted by the International Criminal Court in respect of the date of payment of fines or their payment in instalments shall be taken into consideration.
5. Should the enforcement of a fine imposed by the International Criminal Court prove to be partly or wholly impossible, the International Criminal Court shall be informed thereof.
6. If the International Criminal Court cannot collect a fine but instead sentences the convicted person to imprisonment and requests Austria to enforce the sentence, the provisions in paragraphs 32 to 39 above shall apply.
7. Should the enforcement of a forfeiture measure ordered by the International Criminal Court prove impossible, measures shall be taken in accordance with paragraph 19(1) to (4) of the relevant law on financial measures (FinStrG) with a view to collecting amounts corresponding to the value of the assets or objects to be seized.
8. The proceeds from the enforcement of fines and forfeiture measures are to be transferred to the International Criminal Court, subject to the provision in paragraph 9 below.
9. Fines, objects and other assets may be retained in the Republic of Austria if:
(1) the injured person resides or usually lives in Austria and they are to be granted to him or her;
(2) an authority files a claim to them;
(3) a person not involved in the criminal offence claims rights thereto;
(4) they are required for legal proceedings in Austria.
10. Should a person file a claim pursuant to paragraph 9 above, any consideration as to whether to grant the money or assets requires the consent of the International Criminal Court.
11. The provisions of this section shall also apply to the enforcement of fines ordered by the International Criminal Court for offences against the administration of justice pursuant to article 70 of the Statute.
42. Acceptance of enforcement of reparation orders
1. A request from the International Criminal Court for the enforcement of a binding order by the Court for reparations in the form of money shall be admissible if it is likely that it can be collected in Austria.
2. Enforcement shall comply with paragraph 41 above.
3. Enforceable orders of the International Criminal Court for the return of property or proceeds from criminal offences shall be regarded as determinations by foreign courts which fulfil the conditions in paragraph 79(2) of the execution order.
Section 7
43. Effect of the orders of the International Criminal Court
(Constitutional provision) Where evidence is taken in respect of reparations for victims in proceedings before the Austrian courts from a sentenced person, an enforceable judgement of the International Criminal Court shall represent sufficient evidence of the determinations made. Proof of the inaccuracy of determinations shall be admissible.
Section 8
44. Accepting to prosecute offences against the administration of justice
1. At the request of the International Criminal Court, the offences listed in article 70 (1) of the Statute may be prosecuted in Austria where they have been committed on Austrian territory or by Austrian nationals.
2. In judging such offences, the International Criminal Court shall be regarded as if it were an Austrian court and its officials as if they were Austrian officials.
3. Paragraph 60 of the law on extradition and judicial assistance (ARHG) shall be applied with the understanding that references therein to the requesting State relate to the International Criminal Court.
Enforcement of sentences imposed
National procedures re enforcement of sentences imposed
EDIT.