On February 24th, Bill No. 442/1991, authored by Deputy Renato Vianna (MDB-SC), amends the Criminal Misdemeanors Law (Law No. 3688/1941), making the practice of conventionally called gambling, was approved by a majority by the Chamber of Deputies. There were 246 votes in favor and 202 against the legislative proposal, which is now in the Federal Senate.
The Bill, presented in May 1991, suffered major obstacles to its processing, given the object of its regulation. Despite the controversy that surrounds it, the justification for its proposal is quite clear: criminal classification motivated by selective morality only serves to feed organized crime, thus exerting the opposite effect of what is intended with regard to the long-awaited decrease in crime.
Although the issue it dealt with was of great importance and magnitude, it was only in 2015, in response to the request made by Deputy Jaime Martins (PSD-MG), the Presidency determined the creation of a Special Commission whose objective would be to prepare an opinion on the said Bill and, at that time, all the others on the same subject attached to it.
The need to do so, according to the requesting parliamentarian himself, was due to the fact that "all over the world the issue was regulated, generating an important stimulus to tourism, a large number of jobs and a significant collection that, in our case, can be used in education, health, social assistance and the preparation of our young people." From the opposite perspective, in "Brazil, where there is no regulation, gaming is practiced irregularly, clandestinely, illegally and without revenue for the State," despite the normal functioning and notable collection character of federal and state lotteries.
After a long period of analysis of the matter by the Special Commission, the final text was arrived at, which is very different from the simple prohibitive provisions existing in our legal system until then, especially those contained in the chapter on misdemeanors relating to the police of customs.
If the text is maintained in the terms approved by the Chamber of Deputies, the exploitation of games and bets (casinos, bingos, video bingos, online games, jogo do bicho and turf bets) will be allowed under intense regulation, control and supervision of the Federal Union, more specifically the Ministry of Economy.
The exploitation of games and betting will be allowed in physical or virtual establishments upon prior obtaining by the interested party, a legal entity mandatorily constituted as a corporation, with headquarters and administration in Brazil, of a license to act as an operator, which must also have capital minimum, depending on the segment in which it chooses to develop its activities. In order to make its exercise viable, operators must comply with the rules established for companies in general and in accordance with the regulatory acts issued by the Ministry of Economy.
Records of all data arising from the exploitation of this activity will also be required, such as gambling and betting agents, machines, players and gamblers, in addition to information related to the payment of prizes, in its own system, which can be accessed and/or or shared with the Public Administration. That is to say, the new regulation expressly provides for the necessary compliance with the General Data Protection Law (Law No. 13,709/2018).
The change of object, denomination or share capital, transfer or change of control, in addition to mergers, spin-offs or incorporations, will depend on the prior and express authorization of the Ministry of Economy. Important corporate changes — for example, entry of new shareholders, scope or increase of qualified participation — must be informed, and the body may request additional documents and information and, depending on the diagnosis, even determine its dissolution.
The operators will also have their balance sheets analyzed by the Ministry of Economy and will periodically undergo operational audits aimed "to verify the security, honesty, reliability, transparency and updating of the systems, gaming and betting machines, as well as the electronic sites used for the provision of games and betting", carried out by independent auditing companies or self-regulatory entities registered with the Administration for this purpose. It will also be required to prove the lawful origin of the resources used in the payment of the capital stock, in the acquisition of control and qualified participation.
And, of course, the collection resulting from the exploitation of this activity will be carried out through the Inspection Fee for Gaming and Bets (Tafija), whose value, directed to the National Treasury, will depend on the segment explored, on the Intervention Contribution in the Domain Economic Incident on the Commercialization of Games and Bets (Cide-Jogos), which will fall on the gross revenue of the explorers, as long as it is positive, and on the tax on net prizes equal to or greater than R$10,000.
Individuals related to the activity will be subject to State control.
Controllers and holders of qualifying holdings must have an unblemished reputation, an aspect that will be investigated by the Ministry of Economy, so that the body must be given express authorization to access information about them contained in any public or private information registry system, including those subject to constitutional or legal secrecy. Criminal investigations and prosecutions, including in foreign jurisdiction, may be considered harmful.
The exercise of administrative functions of the operating entities will only be the responsibility of those residing on national territory, with technical training to exercise the position and who do not have in their history conviction for administrative improbity, bankruptcy crime, tax evasion, malfeasance, active or passive corruption, concussion, embezzlement, crimes against the popular economy, public faith, property or the National Financial System, or the criminal penalty that prohibits, even temporarily, access to public office. The Administrator may not have the penalty of suspension applied to the exercise of the function by the Securities and Exchange Commission (CVM) or the Central Bank (BC), be part of proceedings involving default and related conducts and, finally, it cannot have exercised control or management, for the preceding period of 2 years, of a legal entity that has declared insolvency, liquidation, intervention, fiscal direction, judicial recovery or bankruptcy.
The high requirements also apply to gaming and betting agents, who are responsible for coordinating, conducting or mediating activities on behalf of operators. Persons who have been convicted of the above-mentioned crimes cannot hold the position.
There are also restrictions on players and bettors, who must be individuals over 18 years of age and, even so, meet very specific requirements regarding the management of their assets.
Natural persons (i) excluded or suspended from the registration of players and bettors, maintained by the National Gaming and Betting System (Sinaj), are prohibited from participating in games or placing bets, either by self-exclusion or by virtue of a court decision; (ii) declared insolvent or deprived of the administration of their assets; (iii) that, in the last 2 years, have been subject to a debt renegotiation process; (iv) members of the control group, holders of qualified participation, administrators and members of statutory bodies of duly licensed operating entities; and (v) that are part of bodies or entities with regulatory or supervisory powers.
In addition to Sinaj, the Bill also created the National Registry of Prohibited Persons (Renapro), whose purpose is to record gaming access bans, also serving as a control mechanism in the virtual environment. Therefore, in addition to the conditions mentioned above, establishments must have a computer connection to access Renapro's central support system, in order to prove that people requesting entry to their establishments are not registered on that platform.
In order to also protect them from possible risks, the Bill foresees the institution of the National Policy for the Protection of Players and Gamblers, whose purpose is to educate and inform them of the risks inherent to gambling and betting, especially behavioral disorders associated with them, presenting them with prevention and treatment measures.
Once the conditions for operating the activity have been established, punishments for non-compliance are also foreseen.
The conduct of (i) the exploitation of any kind of game, and by any means, without due authorization remains criminalized; (ii) bad faith expressed in the acts of defrauding, adulterating, concealing or directing the result of a game or bet; (iii) the payment of prizes in violation of the law, (iv) allow or authorize, in any form, financial transactions by means of credit card, loan or other type of financing with foreign companies or electronic sites on the world wide web that exploit the activity of gambling and (v) impede or hinder the inspection of the Public Power in terms of gambling and betting, will also be considered a crime. With the exception of two of the crimes listed, whose minimum sentences are four years, the others, as they meet the requirements of the Law, will be covered by the Criminal Non-Persecution Agreement and/or the Conditional Suspension of the Process.
From the administrative point of view, the accountability of legal entities and individuals that fail to comply with the requirements listed in the legislation will be carried out through the Administrative Sanctioning Procedure (PAS), to be established by the Ministry of Justice.
Having concluded this overview of the main novelties brought by Bill 442/1991, it remains to be concluded that, if the text is approved by the Senate after such a long journey, Brazil will resemble most of the other countries that have already regularized the practice of gaming and, with that, they improved tourism and the collection of public coffers. In addition, the attribution of power to control bodies and entities will certainly contribute to the removal of the practice of gambling and betting from where they are today, inhospitable and, in most cases, criminal environments.
However, the question remains: will the measures be sufficient to disrupt the activity historically associated with organized crime?
Pamela Torres Villar
Lawyer at Salomi Advogados. Graduated in Law from the University of Sao Paulo (USP). Specialist in Economic Criminal Law from the University of Coimbra and in Criminal Law and Criminology from the Institute of Criminology and Criminal Policy (ICPC). She integrates the Criminal and Penitentiary Policy Commission of the OAB / SP, the Institute for the Defense of the Right to Defense and the Brazilian Institute of Criminal Sciences.
Roberta de Lima e Silva
Criminal lawyer. Partner at De Lima e Silva Advocacia. Graduated in Law from the Pontifical Catholic University of Sao Paulo (PUC-SP). Postgraduate in Economic Criminal Law from Fundação Getúlio Vargas (FGV-SP). Master's student in Probationary Reasoning at the Universitat de Girona. It integrates the Institute for the Defense of the Right to Defense and the Brazilian Institute of Criminal Sciences.
Source: Consultor Jurídico Magazine
