The OGH decided that "the mere transport of strangers who have already illegally crossed Austria’s border” is not a criminal offence punishable by law.
The ruling could have implications for many cases, including that of a 32-year-old Syrian taxi driver who was based at Vienna airport. He has a minivan with eight seats and last summer he was asked to make three trips to the Austrian border town of Nickelsdorf, by an acquaintance who worked for a people smuggling organization.
He picked up a total of 16 Syrian refugees and drove them to Vienna, charging each person €50.
He was arrested and charged with people smuggling offences in September 2015, and held in custody for a month. He later received an unconditional sentence of 20 months.
His lawyer, Timo Gerersdorfer, appealed the verdict at the high court and won. The court ruled that the taxi driver’s intention had never been to encourage the illegal transportation of migrants, and that taxi drivers should not be punished so long as they only asked for an appropriate fare from passengers (refugees) and did not charge an exorbitant fee.
Usually a taxi fare from Nickelsdorf to Vienna costs between €187 and €248. The refugees had already been allowed to cross the border by Austrian police.