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偷运移民

罪行

• 促成非法入境

11Os125/15i (28 September 2015)

事实梗概

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. 

判决日期:
2015-09-28

交叉问题

责任

... 为了

• 既遂犯罪

... 根据

• 犯罪意图

... 作为涉及方

• 参与者、调解人、从犯

犯罪

详情

• 發生跨一個(或多個)國際邊界(跨國)

所涉国家

奥地利

德国

程序步骤

法律制度:
民法
最新的法院:
最高法院
诉讼类型:
刑事的
被告人的审讯:
与同案其他被告一同处理(合并审讯)
 
 
诉讼 #1:
  • 阶段:
    初审
  • 裁决日期:
    28 August 2015

    法院

    法院名称

    Landesgericht [regional court]

     

    地点

  • 城市/城镇:
    Wels
  • • 刑事的

    说明

    Criminal/Fundamental rights (Arrest warrant – Deprivation of freedom)

    Decision to place the defendant under arrest.

    The  Landesgericht Wels (regional court) decided that an arrest should be warranted as the court suggested that there was reasonable suspicion that Christian T. and Kurt K. 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 said offence as facilitating the illicit entry or transit of foreign nationals (actus rea) with intent of gaining an unlawful material benefit (mens rea).

     
    诉讼 #2:
  • 阶段:
    其他
  • 裁决日期:
    08 September 2015

    法院

    法院名称

    Oberlandesgericht

     

    地点

  • 城市/城镇:
    Linz
  • • 刑事的

    说明

    Decision to back the 1st instance decision

    Christian T. sought to overturn his arrest warrant but his complaint was subsequently rejected by the Court of Second Instance. The Oberlandesgericht Linz upheld the decision of the Landesgericht Wels to place both men under arrest.

     

     
    诉讼 #3:
  • 阶段:
    其他
  • 裁决日期:
    28 September 2015

    法院

    法院名称

    OGH [Supreme Court]

     

    地点

  • 城市/城镇:
    Vienna
  • • 刑事的

    说明

    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. 

     

    被告/ 初审被申请人

    被申请人:
    Christian T
    性别:
    国籍:
    被申请人:
    Kurt K
    性别:
    国籍:

    指控/索赔/裁决

    被申请人:
    Christian T
    指控:

    Smuggling of Migrants

    指控详情:

    § 114 Abs 1, Abs 3 Z 1, Z 2 Fremdenpolizeigesetz (Alien’s Police Act).

    § 173 Abs 1, Abs 2 Z 3 lit a and b Strafprozessordnung (Criminal Procedure Code)

    被申请人:
    Kurt K
    指控:

    Smuggling of migrants

    指控详情:

    § 114 Abs 1, Abs 3 Z 1, Z 2 Fremdenpolizeigesetz (Alien’s Police Act).

    § 173 Abs 1, Abs 2 Z 3 lit a and b Strafprozessordnung (Criminal Procedure Code)

    法院

    OGH [Austrian Supreme Court],