Last Wednesday, 7, the Supreme Federal Court (STF) began to assess the extraordinary appeal, which debates whether the classification of exploitation or participation in gambling as a criminal offense was received by the Federal Constitution.
Five years ago, the Supreme Court determined that the agenda is of general repercussion, this means that it has sufficient economic, social and legal importance for the presentation of this type of appeal, since it goes beyond the individual interests of those involved. The rapporteur is the President of the STF, Minister Luiz Fux.
Therefore, this judgment of the Extraordinary Appeal can be decisive to change the current scenario of banning the gambling and betting market in Brazil, speeding up the release of activities even as a way to help resume economic growth.
This whole context was detailed in Fausto Macedo’s column this Thursday, 8, at Estadão, in a text signed by Amanda Bessoni Boudoux Salgado (PhD student in Criminal Law at the University of São Paulo Law School) and Rodrigo Antonio Serafim (Specialist in Law) Criminal Law and Criminal Procedural Law by the Pontifical Catholic University of São Paulo). Check out!
The legitimacy of the criminal contravention of gambling: on the horizon, the verdict of the Supreme Court
On April 7, the Supreme Federal Court started the judgment of Extraordinary Appeal No. 966177 / RS, which discusses whether the classification of exploitation, establishment or participation in games of chance was received by the 1988 Constitution as a criminal offense. In 2016, the Constitutional Court ruled that the issue is of general repercussion, that is, it has sufficient economic, political, social and legal relevance for the extraordinary appeal, transcending the individual interests of the parties.
In the specific case, the Public Ministry of the State of Rio Grande do Sul expressed non-conformity in the face of a decision by the Criminal Appeals Panel of the Special Criminal Courts of that state, which concluded that the conduct provided for in art. 50 of Decree-Law No. 3,688 / 1941 (Criminal Misdemeanor Law).
For the Rio Grande do Sul court, the provision that punishes the establishment or exploitation of gambling in a public place or accessible to the public is incompatible with the current constitutional principle, in contrast to the individual freedoms guaranteed by the 1988 text. The applicability of the legal provision that defines the misdemeanor, moreover, has already been ruled out several times by the same judging body.
In fact, the issue goes beyond the limits of the subjective cause, causing the Supreme Federal Court to debate issues underlying the practice of gambling itself: the legitimacy of a criminal sanction that is expressly sustained in the protection of “customs” is at stake. [1] compatible with the 1940s, according to the title of the chapter in which the Criminal Misdemeanor Law is inserted (“Misdemeanors related to the customs police”).
Not infrequently, comments on art. 50 of the LCP are accompanied by justifications that are divided into two main arguments: (I) the legal provision meets the need to protect the “exploited” against the exploiter of gambling and the lack of fairness in the results, given that the practice leads the addiction and the ruin of the individual in the family, work and economic spheres; (II) a series of crimes considered very serious, such as money laundering and organized crime, surround the non-state exploitation of gambling.
The first idea, of vulnerability to exploitation, hides yet another reference to the protection of good customs, in addition to being at odds with the right to self-determination. This being the purpose of the type of misdemeanor, it remains to be discussed whether, in the light of the 1988 Constitution, the existence of criminal legitimacy can be affirmed.
If we adopted the perspective of harm to others, in an allusion to John Stuart Mill’s harm principle, art. 50 of the LCP, as the practice does not directly harm third parties. The damage caused to oneself, in scenarios of pathological gambling, demands public health solutions and is not capable of legitimizing the prohibition of a criminal nature.
A better result does not bring the traditional German contribution of the legal good. Although there is frequent criticism of the dematerialization of legal assets and their use as a justification for the expansion of criminal protection, more than a limiting criterion of punitive power, the incompatibility of mere moral illegality with penal provisions has long been stated. In the words of Juarez Tavares, “the existence of a legal asset and the demonstration of its actual injury or concrete endangerment are, therefore, indeclinable presuppositions of the criminal injustice.” [2]
With regard to the protection of “morals” and “good customs”, it is important to remember the directions taken by criminal legislation in sexual crimes, whose original wording reflected the moral conceptions of Brazilian society in the 1940s, to the point of restricting the application of the type of sexual possession through fraud to cases where the victim was an “honest” woman.
By the way, it was only with Law No. 12,015 / 2009 that the title of Title VI of the Penal Code was changed from “crimes against customs” to “crimes against sexual dignity”. In this example, even if the intention to protect a certain sexual morality was declared, there is no doubt about the existence of a legitimate legal asset to be protected by criminal law, since the conduct described effectively harms sexual self-determination or sexual freedom, depending on hypothesis.
The figure of the criminal contravention of games of chance, on the other hand, does not survive this analysis. The argument of the protection of customs and the reprobation of easy profit is invalid, since it is strictly moralistic. So much it obeys the moral perceptions of the society, according to the momentary context, that the bingos were already expressly authorized by law, even configuring “game of chance”, in the terms of art. 50 of the LCP.
Law No. 8,672, of 1993, known as “Zico’s Law”, allowed the sport in order to raise funds for the promotion of sport. Some years later, “Pelé’s Law” (Law No. 9,615 / 1998) started to authorize bingo games throughout the national territory, subject to the fulfillment of certain conditions. However, Law No. 9,981 / 2000 came and revoked the provisions of the previous law that contained the bingos’ operating permit. [3]
Second, not even the assertion that the practice of gambling is usually associated with more serious crimes, such as money laundering and organized crime, does it bring sufficient damage criteria to consider criminal punishment legitimate, under the influence individual freedoms listed by the Constitution. This is because the possibility of “capture” of gambling establishments by members of criminal organizations does not presumably make them harmful.
There is nothing that automatically links the practices of games to certain types of criminality, and the decriminalization of conduct provided for in art. 50 of the LCP would not make it easier to commit those crimes. In other words, there is no accessory relationship between such illegal activities and gambling, which further frustrates the search for injury to a legal asset that makes the legal provision legitimate (different from what happens, for example, in money laundering itself, which relates to the antecedent crime, but has separate legal protection).
In summary, there does not seem to be any interpretive construction that considers the referred criminal offense accepted by the 1988 Constitution without making use of speculation about negative externalities. The absence of autonomous injury and sufficient for criminal intervention is more than enough to challenge the material nature of the conduct.
Eventual practical and sociological reasons may even recommend characterizing the exploitation of gambling as an administrative offense, but, in our view, the fundamentals that are presented to the Supreme Court today do not give it legitimacy as a penal category. Even so, it is worth saying that any initiative to legalize gambling in Brazil, such as Senate Bill No. 186/2014, should not ignore the questioning of the sector’s position in the normative system for preventing money laundering.