Simplified extradition: consent and loss of speciality protection

Priority is accorded to conflicting provisions in international agreements under § 1 ARHG. Consequently, defence counsel must identify the requesting state, the applicable agreement, and any supplements or reservations effective for Austria. Simplified procedures, consent, and speciality are also concerned. The statutory rules explained here describe § 32 ARHG to the extent that no overriding treaty rule differs. That assessment is not resolved by the label third country. If a European Arrest Warrant is involved instead, the EU-JZG requires a separate examination; its consent and revocation model must not be transferred to § 32 ARHG.

The right of the person concerned to consult defence counsel before consenting is expressly granted by § 32 Abs. 1 ARHG. A foreign request for extradition detention may already provide the basis, and a complete extradition request is not required in every case for this declaration. It is therefore particularly important to discuss the known allegations, decisions and missing documents beforehand. Where several requests exist, consent is effective only if it covers all of them. A lawyer must immediately be assigned under § 29 Abs. 4 ARHG to a person placed in extradition detention who does not yet have counsel.

Valid consent for a person in extradition detention is permitted by § 32 Abs. 1 ARHG at the earliest at the detention hearing referred to in § 175 Abs. 2 Z 1 StPO. This hearing concerns the first detention period, which the referenced provision sets at 14 days from the imposition of detention. A fixed waiting period of 14 days is not established: the relevant hearing is decisive. Consent at an initial interview before that hearing does not suffice for valid consent while in extradition detention. The detention order, its date and the hearing date should therefore be checked together.

Only if consent is entered in the court record can it become legally valid under § 32 Abs. 1 ARHG. Under Abs. 2, the right to consult counsel, the loss of speciality protection, and the irrevocable nature of consent must be explained by the court. Anyone who does not understand the consequences should raise this before making the declaration and request necessary language assistance. Abs. 3 adds a requirement for juveniles: their legal representative must also agree or they must be represented by defence counsel. The personal declaration before the court cannot be replaced by a private signature or a declaration by relatives.

The scope of prosecution in the requesting state is generally limited by extradition pursuant to § 23 Abs. 1 and 2 ARHG. This protection encompasses, in particular, other acts committed prior to surrender that lie outside the authorisation, restrictions on personal liberty, and onward extradition to a third state; furthermore, changes in legal classification are regulated. For extradition under § 32, entitlement to this protection or to corresponding treaty provisions is removed by its Abs. 2. Additionally, § 23 Abs. 3 Z 3 exempts this route from the requirement for subsequent consent under Abs. 2. Consequently, under the statutory model, a separate reservation of speciality protection cannot render the simplified route risk-free. Before consent is given, other known proceedings must be discussed.

While awaiting the later surrender order, valid consent under § 32 ARHG cannot be withdrawn. The file is sent directly to the Federal Ministry of Justice by the court. When the requirements are met, the Federal Minister orders surrender under § 34 Abs. 3 ARHG; if concerns about admissibility arise on the grounds specified there, formal proceedings must take place. Therefore, consent promises neither immediate surrender nor release. Under § 29 Abs. 5 ARHG, the time limit of the most recent detention order is removed by consent, and further detention hearings held of the court’s own motion are ended. Ongoing detention must continue to be assessed separately by defence counsel.

All requests, the detention order, available translations, and information about other proceedings in the destination state should be assembled by defence counsel before the decision. Before the irrevocable declaration, possible bars to extradition, such as limitation, should be examined. The concrete consequences of losing speciality protection must be weighed against the prospect of a shorter procedure. If consent has already been given, the court record, the warning, and evidence of the timing and scope of the declaration must be secured immediately. Assessing whether valid consent exists at all differs from an excluded mere revocation. While relatives can organise documents and contact with counsel, they cannot make the consent decision for the detained person.