The legal background of „Schlepperei“

In 2013, 352 persons were caught by the Austrian police because they were suspected
of doing human smuggling. This shows that the case of the eight accused in Wie-
ner Neustadt is just one of many trials on “Schlepperei” in Austria. The legal norms
criminalizing human smuggling are changing frequently and are strongly influenced
by discussions within the European Union. This article focuses on the prevailing legal
situation in 2014.

§114 is part of the Austrian „Fremdenpolizeigesetz“ („aliens’ police law“). As in many
other cases migration is discussed as a problem of security for EU citizens: According
to legislative authorities the paragraph should protect the borders and the interests of
the state, help to keep the „public order and security“ and protect the national labour
market. According to this law, a person who promotes the illegalized immigration or
journey of a non-citizen to Austria or another country of the EU, in order to enrich
oneself or a third person can be charged with “Schlepperei”.
The definition of „promote“ is widely interpreted: It means any kind of behavior
facilitating the illegalized journey, such as offering sleeping places, buying train tickets
or giving advise for safer border-crossing. In the legal practice it is not necessary that
somebody really crosses a border somewhere, the mere possibility that someone could
cross a border illegally is enough to break this law.
“Enrichment“ can be money, but also cigarettes or food. These kinds of “enrichment”
do not have to be given to the “smuggler” directly. It can also be a third person who
gains money, cigarettes or a burger.
If these basic elements are fulfilled, one can be punished with up to two years in prison.
For other, more severe forms of smuggling there can be sentences between 6 months
up to five years. If someone is spoken guilty for human smuggling as part of a criminal
association the sentence can be up to 10 years.

From a juristic perspective one can criticize that almost every action leading to the
exchange of money between persons who are not even directly participating on a
border-crossing action can be criminalized as supporters of illegalized border-crossing.
It is not even necessary that the accused person knows about the complete action. This
law makes it possible that persons who offer a ride and people like taxi drivers can be
prosecuted as “smugglers”. As a consequence, they start to control ID-cards and visa
which means they are driven to do police work.
The fight against human smuggling is an important goal of national and international
politics: As the amendments in 2000 and 2005 showed, EU guidelines and frameworks
should lead to harmonized legal norms in Europe, higher sentences and more effective
investigations.

§114 FPG is part of a whole set of legal norms that are criminalizing migration and
are making life more complicated for migrants. Examples are the criminalization of
marriages and adoptions, restrictive asylum laws and the limited access to the labor
market, which pushes people in precarious working conditions. Another point are the
extended permissions police have against persons they define as „foreigners“.
Laws as these are built on the differentiation between persons with and without papers.
Based on this differentiation is also the practice known as „racial profiling“, something
also happened in the current case: The suspicion of a person looking „illegal“ is, by law,
reason enough for the police to make an ID-control.
According to law only a person without a legal status can be smuggled. In the current
case it is not clear how many of the supposedly smuggled people, in the beginning
often nameless, had asylum or any other legal status. The police just assumed that they
were without papers. It became clear that the cops based their actions simply on their
„experience“ as foreign police – this was the explanation for these kinds of vagueness.