You have certainly heard the expression "gambling". In Brazil, games of chance are considered criminal offenses, a type of criminal infraction with less offensive potential, with a penalty of three months to a year, in addition to a fine and loss of furniture and objects that decorate the place where the activity takes place.
The infraction in question is typified in Article 50 of the Criminal Misdemeanor Law (Decree-Law 3688, 1941) and considers as a game of chance: a) the game in which the gain and loss depend exclusively or mainly on luck; b) bets on horse racing outside the racecourse or where they are authorized; and c) bets on any other sports competition. In this sense, it is important to consider that both those who exploit the game and bettors respond criminally, as long as the games take place in a public place or with access to the public.
However, gambling has already been legalized in Brazil, the last prohibition contained in the aforementioned art. 50 of the Criminal Misdemeanor Law, still in force, was imposed in the mandate of President Gaspar Dutra, in 1946. Such restoration took place through Decree-Law 9215, which was based, among others, on morals and good customs and on the fact that that the repression of games of chance is an imperative of universal conscience, as well as the legal and religious moral tradition of the Brazilian people is contrary to the practice and exploitation of games of chance.
Despite the ban, gambling remains a constant practice in the country. There are slot machines and jogo do bicho points of sale in central regions of large cities, such as the capital of Minas Gerais. Likewise, the stands of card games, jogo do bicho and even clandestine casinos remain scattered, many of them in the eyes of the local authorities themselves.
Certainly, today's society differs from that of the mid-20th century. There were times of social state and great interference by the state in personal relationships. Currently, the country is in a more liberal era, in which principles of the economy are gaining strength, including free initiative, with the individual having autonomy to exercise any job or occupation, without interference from the state body, which must stick to the regulation, in order to safeguard the common good.
Thus, the rule is freedom to exercise work, limitation is an exception and as such can only be invoked if supported by principles more relevant than free initiative and individual freedom.
It is noted that the ban on gambling is based on religious precepts and on a morality that no longer concerns the present. Nobody, or at least most people, these days, are morally offended because there is a gambling spot at the corner. The people who play there are free to decide whether they want to play and how much they want to spend with the bets.
That is exactly why there are bills to regulate gambling in the country, including the Senate 186 bill of 2014, authored by Senator Ciro Nogueira, which has been ready for deliberation in plenary since 2019. The proposal, in addition to encompassing the authorization of games of chance across the country, recognizing their historical and cultural value and their social purpose, also clarifies what games of chance are, how they are exploited, the destination of the funds collected, and, finally, it still defines administrative and criminal infractions arising from the violation of the rules concerning the exploitation of these games.
The topic is so relevant that the discussion about the decriminalization of conduct reached the Supreme Federal Court (STF) through Extraordinary Appeal 966177, after the Rio Grande do Sul state appeals group recognized the atypicality of Article 50 of Decree Law 3688, that is, it considered that the game of chance cannot be considered a criminal offense, since the arguments that justified the criminalization are not supported by the 1988 Constitution.
In a decision issued in November 2016, the STF recognized the general repercussion in the case, given that it is a relevant issue from an economic, legal, social, and political point of view. As a result, criminal proceedings involving games of chance are suspended in the country until a final decision by the Supreme Court is reached.
In fact, the issue is controversial and needs to be debated, since fundamental guarantees have been relativized by moral and religious issues that, as very well emphasized by the Rio Grande do Sul Court of Justice, are not in line with the current Federal Constitution, which it has a strong matrix in freedoms.
Amanda Rodrigues Alves
Master in Environmental Law and Sustainable Development by Dom Helder Law School. Member of the "Criminal Law" and "OAB goes to School" commissions of the OAB / MG. Criminal lawyer and co-owner of Rodrigues Alves e Sella Sociedade de Advogados.
