In July and August 2015, Christian T. and Kurt K. drove up to 31 foreign nationals, without EU rights of residence, from Vienna to the German border in their taxis.

The incident was brought to the attention of the Regional Court of Wels, which decided that an arrest warrant should be issued as the court suggested that there was reasonable suspicion that they had committed the offence of migrant smuggling. Both men were arrested and charged for smuggling of migrants according to § 114 Abs 1, Abs 3 Z 1, Z 2 Fremdenpolizeigesetz (Alien’s Police Act), which defines the offence as facilitating the illicit entry or transit of foreign nationals (actus rea) with intent of gaining an unlawful material benefit (mens rea).

Regarding the actus rea the facts suggested that Christian T. and Kurt K. did in fact facilitate the illicit transit of foreign nationals, but what about the mens rea, as the two men were only paid their normal taxi fees?

Christian T. sought to overturn his arrest warrant but his complaint was subsequently rejected by the Court of Second Instance. However, when the matter was brought before the Austrian High Court, the decision to place both men under arrest was overturned, as the mens rea element was not properly established and therefore no urgent suspicion was given.

The High Court ruled that intention to gain an unlawful material benefit does not only require a perpetrator to obtain a fee, but that the obtained fee exceeds the adequate extent. Only then shall a perpetrator be criminally liable for the offence of migrant smuggling. The facts of the case however suggested that the agreed fee for a taxi ride of this length was adequate. As such, the Austrian High Court concluded that there has been no reasonable suspicion that the offence of migrant smuggling had taken place in this instance and went on to overrule the arrest warrants against Christian T. and Kurt K.