Different aspects of the court case of the of ‘human smuggling’ accused persons in
Wiener Neustadt has been broached as an issue already:or example racism rooted in
institutions and society, that crossing borders is possible for some and impossible for
others, wrong translations during the trial which additionally where incriminating,
political motivation before parliament elections, lies of the minister of internal affairs
about millions of profit and allegedly cruel bosses of a “human smuggling” mafia.
What has not been broached as an issue is the creation, maintenance and finally crim-
inalization of precarious living conditions. This issue has been observable in different
ways during and prior to the trial.
First of all people had been kept in investigative custody („Untersuchungshaft“)¹ for
months, argued with a danger that they would repeat the “crime” („Tatwiederbegehu-
ngsgefahr“)². The accusation included an increase of the punishment saying that the
“crime” was done within a ‘criminal organization’ and also saying that they committed
it “commercially” (“gewerbsmäßig”)³. The main argument given for this accusation is
the assumed lack of material resources of the accused.
An appeal against the point of committing it “commercially” in the accusation had
been rejected by the higher regional court on the grounds of the low income of the
accused which led the court to the assumption of committing it “commercially”.
In the refusal of the objection it says: ‘Especially the commercial motive of all par-
ticipants is construable […] from the membership of a […] criminal organization in
relation with the minimal income of asylum seekers of 39,- € or 45,- € monthly of the
accused who are without other means.’
The criminalization of precarious life situations can be seen similarly already in the
‘ground crime’ („Grunddelikt“)⁴: Helping someone with irregular border crossing is
only considered a crime and followed by penal consequences if an intention of enrich-
ment („Bereicherungsvorsatz“) is included. In theory, such an intention of enrichment
can only be proven through statements of the accused since intention is an inner fact
which refers to the consciousness of the accused person not to external facts. However,
for the institutions a low income seems enough reason for this inner fact of intention
of enrichment.

That means, it is argued that there can only be one motive for a person with little mon-
ey to do a certain thing: earning money. Again and again the judge in this trial doubted
the statements of the accused which said that the reason for their actions where some-
thing different than financial ones. Nevertheless the judge kept on doubting and put
the financial and material situation of the accused in context of their motivation.
On the one hand, laws limit the possibilities of people with precarious statuses to earn
money, for example through a very limited access to the job market. On the other
hand, other laws criminalize acts which are set because of a bad financial situation and
finally, because of their precarious situation people get denied that they can act out of
solidarity.

————————
¹ investigative custody means that somebody is in prison without a sentence and has to wait there for his/
her trial. The state justifies this with the arguments that this person will maybe commit the “crime“ again
or could flee or destroy proofs.
² “Tatwiederbegehungsgefahr” means that the reason for being in investigation-detention is that police says
it is possible that the person commits the crime again.
³ Committing a „crime“ “commercially” makes the punishment higher and means that a person did the
crime to get money for daily life.
⁴ Means only the delict of „human smuggling“ without additional higher punishment for a ‘commercial
character’ or within a criminal organization.