Human trafficking and sham marriages in Austrian criminal law

(Click here to read this post in Dutch.)

As it is a central European country, criminal offences in relation to immigration are a common occurrence in Austria. Two prominent offences here are human trafficking (Schlepperei) and the sham marriage (Aufenthaltsehe).

This post offers a brief overview of these two crimes. General information about Austrian criminal procedure can be found here.

Human trafficking

In Austrian law, human trafficking is criminalized under § 114 of the Austrian Foreign Nationals Police Act (Fremdenpolizeigesetz; FPG). According to § 114 FPG, human trafficking occurs when someone facilitates the unlawful entry or travel of an “alien” (meaning: a foreign national without official authorization to enter Austria or the EU) onto or through the territory of an EU member state, any neighboring state of Austria or Austria itself.

An important requirement here is that the perpetrator has the intention to commit the act in order to enrich either himself or a third party financially. In other words: there needs to be a financial motivation for the trafficking.

Punishments for human trafficking

A criminal conviction for human trafficking in Austria can lead to a prison sentence of up to two years. However, there are several elements that can increase the maximum sentence:

•  A prison sentence of a maximum of three years can be given to an offender that has been convicted of human trafficking within the last five years.

• A prison sentence of six months up to five years can be given to an offender in the following cases:

  • If the trafficking was done with a “commercial” purpose, meaning the intent to generate a continuous income with the act.

  • If more than three “aliens” were trafficked.

  • If the trafficking – or especially the journey – involved a substantial amount of suffering and hardship on the part of the trafficked (example: the trafficking of large groups in cramped containers).

• A prison sentence of one up to ten years can be given in two other situations:

  • If the perpetrator carried out the trafficking as a member of a criminal group (i.e. a group of at least three members with the intent to commit more serious criminal offences).

  • If the trafficking was carried out in a way that seriously threatened or endangered the life of the trafficked persons.

Prison sentences may be given unconditionally or conditionally with a probationary period. A combination of the two is also possible. The length and form of a prison sentence will always depend heavily on the specific circumstances of the case and the persons involved.

Protection of the “alien”

The “aliens”, or trafficked persons themselves cannot be prosecuted for the trafficking itself. They can, however, can be interrogated in relation to the act. In addition, fines may be given for their unlawful entry into or travel through the EU.

Sham marriage

A sham marriage in Austria is a marriage of convenience. At least one party will have entered this marriage not with the intent to create an actual marital relationship, but with the purpose of gaining an advantage in acquiring a residence permit. In other words, at least one of the partners has married (only) for immigration purposes.

Sham marriages are punishable under § 117 FPG. A marriage will in Austria however only be considered a sham under certain circumstances, specifically when there is no sign of a real marital relationship. For the exact definition, the law refers to article 8 of the European Convention of Human Rights; whether or not a real marital relationship exists will in practice heavily depend on the individual circumstances. Important indicators sham marriage are for instance no cohabitation, no family life, not knowing important information about the partner or a very short engagement before marriage.

The above-mentioned lack of a marital relationship is not the only requirement. It is also essential whether a partner was or should have been aware that the other partner´s purpose of the marriage was solely for immigration reasons. If one partner had romantic intentions but was aware of the other´s actual, exclusively immigration-related motives, he or she could still be criminally liable.

Punishment of the sham marriage in Austria

People entering into a sham marriage may receive a fine. Harsher punishment is also possible:

• Those that are paid to enter into a sham marriage and therefore have the intent to enrich themselves, risk a prison sentence of up to a year.

• Those that enter into a sham marriage for “commercial” purposes, i.e. with the intent to generate a continuous income, risk a prison sentence of up to three years.

What sentence will be imposed will also depend on the individual circumstances here. Under certain conditions, the perpetrator may be able to conclude a settlement (Diversion) and thereby avoid a criminal conviction.

A conviction for a sham marriage pursuant to § 117 FPG will also affect the marriage itself and in particular the foreign partner and his or her immigration status. This partner, if attempting to rely on immigration rights on basis of the marriage, may also be prosecuted. The marriage itself may be annulled; obtained immigration permits will be re-examined, usually with negative consequences.

Legal guidance recommended

People facing criminal charges are urgently recommended to seek legal counsel as soon as possible. I offer my support and guidance in criminal procedures in Austria. Of course, I do so entirely in English. Feel free to contact me by using the form below, writing me at office@vastenburg.at or calling me at 0043 6804446590.  General information on Austrian criminal procedure can be found here.

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