QUI 22 DE JUNHO DE 2017 - 17:26hs.
Roberto Carvalho Brasil Fernandes
OPINION - ROBERTO CARVALHO BRASIL FERNANDES, ABLES LAWYER

STF decides validity of the Law that prohibits gambling

It is getting closer the date of the judgment by the STF of Extraordinary Appeal number 966,177, promoted by the Public Prosecutor's Office, against the decision of the Judicial Branch (Turma Recursais) of Rio Grande do Sul, which does not recognize the validity of the law that considers criminal infraction the exploitation of games of chance.

STF decides validity of the Law that prohibits gambling

STF decides validity of the Law that prohibits gambling
It is getting closer the date of the judgment by the STF of Extraordinary Appeal number 966,177, promoted by the Public Prosecutor's Office, against the decision of the Judicial Branch (Turma Recursais) of Rio Grande do Sul, which does not recognize the validity of the law that considers criminal infraction the exploitation of games of chance.

The Appeal has already been processed and appreciated its admissibility for the recognition of the existence of General Repercussion. The object of the action at issue refers to the inapplicability of article 50 of DL 3.688 / 41, in the face of the confrontation (or syntony, in case of origin of the RE) with the Constitution of the Federative Republic of Brazil.

As it is known, the General Repercussion is a constitutional procedural instrument that allows the Supreme Court to select the Extraordinary Remedies to be analyzed, according to criteria of legal, political, social or economic relevance, in order to reduce the number of cases referred to the Supreme Court and subsequent application of the decision by the lower courts, in identical cases, without such a decision having a binding effect (which obliges the lower courts to adopt the STF's understanding), such as those summoned under the terms of Law 11,417 / 2006.

Before focusing on merit (which should not be the subject of the ER), it reinforces attention to articles 22-XX, 195-III and 177 of CF / 88, which, when interpreted (simply debated in the course) by Sumula Binding , conclude respectively: (i) that it is the exclusive responsibility of the Union to legislate on "games of chance" (consortia and sweepstakes systems, including bingos and lotteries); (ii) that revenue from "numerical" prognostic contests will serve to finance social security In the states, in the Union and in municipalities; and (iii) that the operation of such activity (numerical prognostic contests) is not a monopoly by the Union.

Therefore, it is evident that, whatever the decision of the STF in this case, it will not have an effect that prejudices the matter dealt with in the National Congress (PL 442/91 and PLS 186/2014), since, if the Court grants the Appeal - RE, the application of article 50 of DL 3,688 (which is not new) to prevent unauthorized exploitation of gambling will not be offensive to CF / 88, and in this case, will drive away the unlawfulness of the exploitation of games of chance, which does not rule out the need for control of the Public Power (regulations, permit, etc.) and submission to taxes on said activity.

In no way, RE 966.177 will affect the drafting of the bills that are in the National Congress and which has as its object the "gambling, lotteries, bingos, casinos, etc." (example of PL 442/91 and PLS 186 / 2014), because what the Chamber of Deputies and the Federal Senate are doing is exactly what directs the STF when interpreting article 22, item XX of CF / 88, and to edit the binding Sumula 02: they are using the prerogative of exclusivity to legislate on draws, including bingos and lotteries and everything else that fits the concept.

As to the merits, I adopt the position as I understand that "the mere subsumption of the
Fact to the norm (formal typicity) is not enough to recognize the typical (criminal) conduct, being essential to submit the case to the analysis of i) validity of the infra-constitutional norm, ii) legitimacy of punishment and iii) justified need, under penalty of giving space to the police state, "subjugating the democratic state of law and thus use police repression to protect interests that do not concern the interests of society.

The exploitation of the game of chance in Brazil, in any of its modalities, does not seriously endanger other legal rights, which makes it illegitimate to prohibit fully tolerated conduct (in this case, I exclude morality and good customs as a legal right to be legally protected). Perhaps the motivation of the resistance (here and there) against the repeal of article 50 of DL 3.688 / 41 of the legal system, has a strong economic nature, either because it should pay taxes or because paying tribute to the states would compete with the games of the Union.

It is an interest which, in fact, contrasts with the ideals of a democratic state of law, in that it makes clear the intention to prevent states from raising funds from products in lotteries and to repress someone by an option that poses a real risk to 21st-century relevant legal assets.

I am bound to the academic understanding that "the limitation to the performance of the individual in this field is fully legitimate, justifying only the restriction of free initiative, reserving to the State control over gambling, punishing civilly, administratively and criminally, the conduct that violates the prohibition, which removes freedom from the economic activity of the individual, since this only develops within the scope of lawfulness.

I repudiate the speech of the MP of the RGS in the SR with the STF, in which he affirms that "Brazil lacks the structure and professional or technical qualification to deal with legalized gambling" whose despicable analysis finds obstacles in the successful experiences of more than 156 countries ( OECD, G20, WTO, UN) and the recognition of the gaming as an economic and recreational activity whose regulation and control by the state is the ONLY way to control gambling and ensure the responsible exploitation of this activity.

I conclude with my observation in the BgC / Rio2013 and ICE/London 2017 Seminars, stating that in the countries of the world there is no successful experience from a social, economic and public safety point of view among those who have chosen to ban gambling or of the state in the control of this activity.

After the judgment of RE 966.177, based on the STF, Senators and Federal Deputies will continue to discuss and continue to vote on the regulation of gambling (PLS 186/2014 and PL 442/91), because the Federal Constitution confers this privilege (art. 22, XX and SV 02 / STF), a circumstance that is not at stake in this judgment.


Roberto Carvalho Brasil Fernandes, Brazilian, postgraduate in Law, lawyer of ABLE - Brazilian Association of State Lotteries, accredited in the Chamber of Deputies to represent the interest of the state Lotteries (RICD / 3,008,963), signatory of the defense of the Lotteries in the Supreme Federal Court in ADI, ADPF and other constitutional actions. 
Guest Conference on Gaming and Lottery, by Clarion Events (BGC and ICE / 2016), by STF in the Great Judgments program, in the II Encuentro Latinoamericano Del Juego / Peru, in the seminar Challenges and Prospects for Regulation of Games / ALMG-Minas Gerais / 2015 and others.
Authority invited by the Special Commission of the Regulatory Framework of Gaming in Brazil to expose the perspective of the state Lotteries and interest in the bills that are processed in the Chamber of Deputies; Author of several articles on the market of Gaming in Brazil. Specialist in international law and internalization of capital and customs.

e-mail: roberto@brasilfernandes.adv.br