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Smuggling has been a criminal offense in the Austrian Aliens Police Act (§ 114 FPG) since 2005 .

Legal regulation

meaning

Anyone who promotes the illegal entry or transit of a foreigner into or through a member state of the European Union or a neighboring state of Austria with the intention of illegally enriching themselves or a third party through remuneration paid for this purpose is to be punished by the court with a prison sentence of up to two years (§ 114 para. 1 FPG).

This is a border crime offense , the central characteristic of which is the illegal crossing of a state border.

Anyone who does not have Austrian citizenship is stranger , entry means entering and leaving the federal territory . Transit means crossing the federal territory including the necessary interruptions (Section 2 (4) No. 1–3 FPG).

History of origin

Smuggling found its way into the Austrian legal system for the first time in 1990 in the Aliens Police Act of that time. Sections 14, 14a FPG old version contained an administrative criminal offense and a criminal offense for smuggling. The master version of the criminal offenses of smuggling, both in the basic criminal offense sanctioned under administrative law as well as in the legally sanctioned qualification offense, was based on the remuneration of the promotion of illegal entry or exit.

In 1992, smuggling was incorporated into the Aliens Act and significantly expanded (Sections 80, 81 FrG). On the one hand, there was no remuneration for promoting illegal entry or exit as a condition of the offense; Any promotion of illegal entry or exit was now punishable. On the other hand, the own advantage of the smuggler was no longer a prerequisite for the administrative authority, but only for the judicial criminality of the smuggling; an unlawful enrichment of the smuggler was also not necessary for the criminal liability.

The criminal offense of exploitative smuggling was added to the Criminal Code in 1996 (Section 104a StGB old version).

In 1997 the legislature abandoned the coexistence of judicial and administrative offenses and created a regulation that was completely assigned to judicial criminal law. The exploitative smuggling according to §104 a StGB was eliminated. Section 104 Aliens Act created the new uniform offense of smuggling .

The Aliens Police Act 2005 took over the criminal provision of § 104 of the Aliens Act with a substantial extension of the criminal liability in § 114 FPG. This was done in view of the framework decision (2002/946 / JHA) of the Council of 28 November 2002 on the strengthening of the criminal law framework for combating aid to unauthorized entry, transit and residence and Directive 2002/90 / EC of the Council of November 28, 2002 on the definition of aid for unauthorized entry, transit and stay.

Art. 1 para. 1 lit. a of Directive 2002/90 / EC stipulated that each Member State must lay down appropriate sanctions for those “who willfully assist a person who is not a national of a Member State to move into the territory of a Member State in violation of the law of the State concerned the entry or transit of foreigners to enter or to travel through its territory. "

In 2009 the offense of smuggling was again divided into an administrative offense and a judicial offense. Anyone who knowingly promotes the illegal entry or transit of a foreigner into or through a member state of the European Union or a neighboring state of Austria is committing an administrative offense (§ 120 Paragraph 3 Z1 FPG), § 114 FPG contains the criminal offense of smuggling.

Germany

The smuggling of foreigners is a criminal offense in Germany. The German Residence Act contains corresponding criminal offenses in § 96 and § 97 AufenthG. Anyone who instigates someone else or helps them to enter the federal territory without permission is punished with imprisonment of three months to five years. Anyone who causes the death of the person smuggled is punished with imprisonment for no less than three years.

The main difference is that only in Austria - a typical transit country - illegal transit is explicitly included.

Switzerland

Article 116 of the Aliens Act (AUG) makes the promotion of illegal entry and exit as well as illegal residence a punishable offense. In contrast to the Austrian regulation, this is not limited to the intention to make a profit. She is punished with up to one year imprisonment or a fine, but in minor cases only a fine can be pronounced (line 2). Intending to unlawfully enrich oneself or someone else, as well as gang crime , aggravatingly leads to up to five years imprisonment and a fine (line 3).

literature

  • Kurt Schmoller : “Schlepperei” and “Exploitative Smuggling” - Two new types of offenses in Austrian criminal law. In: Gerhard Wolf : Crime in the border area. Springer-Verlag, 1999, ISBN 978-3-642-58432-9 , pp. 33-66 ( limited preview in Google book search).
  • Anny Knapp / Asylkoordination Austria: Entry controls encourage entry with the help of smugglers . Research on border control measures as part of the “Entering Territory” project, May 2011 (pdf, asyl.at).

Web links

Wiktionary: Schlepperei  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Jusline: § 114 FPG (Aliens Police Act), Schlepperei - JUSLINE Austria. In: jusline.at. Retrieved August 28, 2015 .
  2. ↑ Veronika Hofinger, Arno Pilgram: How foreign prisons conserve and prisons foreigners. About the interplay between crime and foreign policy. In: Daniela Klimke: Exclusion in the market society. Springer-Verlag, 2008, ISBN 978-3-531-90862-5 , pp. 107–126 ( limited preview in the Google book search).
  3. ↑ Katharina Jetzinger: The offense of smuggling and its function (s) using the example of the imprisonment of asylum seekers in connection with the refugee protest in Vienna. What are the implications for social workers? social capital 2014.
  4. ↑ Schmoller, p. 33.
  5. ^ Jusline: § 114 FPG (Aliens Police Act), Schlepperei - JUSLINE Austria. In: jusline.at. Retrieved May 30, 2016 .
  6. ↑ Schmoller, p. 33.
  7. ↑ cf. on the legal development of the Constitutional Court, decision of February 22, 2016 - G531 / 2015 and others
  8. ↑ Schmoller, p. 34.
  9. ↑ OJ. L 328 of December 5, 2002
  10. ↑ OJ. L 328/17 of December 5, 2002
  11. ^ Jürgen Stock : Internationally organized smuggling crime (international trade with people). In: Hans Joachim Schneider : Internationales Handbuch der Kriminologie. Walter de Gruyter, 2009, ISBN 978-3-899-49129-6 , pp. 103-120 ( limited preview in the Google book search).