There has been talk in Brazil about legalizing gambling for a long time.
The term “games of chance” commonly refers to games in which the luck factor is mostly or completely decisive in the results of a match, that is, they are games in which those who are lucky are those who win with the bad luck of the other players, due to the difference in probabilities between luck and unlucky.
It is known that the first record of gambling in human history dates back to the year 2300 BC. C., China, where dice games were used to decide territorial disputes.
From there, later, they spread all over the world, from antiquity, being present in the Roman Empire, passing through the Middle Ages and finding acceptance, nowadays, in practically all countries of the world.
In Brazil, there are news of gambling in the period of the Empire and in the Republic, being prohibited only in 1917, by virtue of Decree-law n. 9,215, of April 30, 1946, signed by then President Eurico Gaspar Dutra.
The aforementioned decree-law, in its preamble, in the so-called “recitals”, clearly portrays the spirit of the government at the time, by establishing:
“Considering that the repression of gambling is an imperative of universal conscience;
Considering that the penal legislation of all educated peoples contains precepts for this purpose;
Considering that the moral, legal and religious tradition of the Brazilian people is against the practice and exploitation of games of chance;
Considering that, from the exceptions made to the general law, harmful abuses to morals and good customs resulted;” (...)
As can be seen, there is no plausible legal argument in the aforementioned rule for the prohibition of gambling, the reasons being purely morals and good customs.
Still from the legislative point of view, in Brazil, “establishing or exploring gambling” constitutes a criminal misdemeanor provided for in art. 50 of Decree-Law no. 3.688/41 (Criminal Misdemeanors Law), in chapter VII which deals with “Misdemeanors relating to the Police of Customs”.
It also constitutes a criminal misdemeanor, provided for in art. 51 of the aforementioned decree-law, “promote or cause lottery to be extracted, without legal authorization”, followed by other similar typical figures, in arts. 52 to 57, until reaching the famous “jogo do bicho”, a kind of game of chance typified in art. 58 of the Criminal Misdemeanors Act.
However, it is necessary to differentiate gambling from sports betting and lotteries.
Gambling is prohibited. Some sports betting and lotteries are allowed in Brazil, controlled and sponsored by Caixa Econômica Federal, such as Mega-Sena, Lotofácil, Federal, Quina, Loteca, Timemania and many others. These lotteries are allowed and generate revenue for the public coffers and even sponsor various social programs.
The lottery service, federal or state, is performed throughout the national territory in accordance with the provisions of Decree-Law no. 6,259/44, according to which the governments of the Union and of the States may assign the operation of the lottery service to concessionaires of proven moral and financial reputation. The federal lottery has free circulation throughout the country, while state lotteries are restricted to the limits of the respective state. In the same sense, Decree-Law no. 204/67.
Including the National Public Security Fund (FNSP) has as one of its sources of revenue the one arising from the exploitation of lotteries, in accordance with the provisions of Law n. 13,756/2018.
Within the scope of social security, lotteries and betting (called “prognostic contests”) constitute forms of financing, in accordance with the provisions of art. 195, III, of the Federal Constitution, and in art. 26 of Law no. 8,212/91.
More recently, the Chamber of Deputies approved PL 442/1991, according to which the operation of games of chance in various modalities will depend on licenses, which may be granted on a permanent basis or for a determined period. Casinos may be installed in large resorts, with a limit of establishments per state and a ban on the same economic group controlling multiple establishments in the same state. There may also be tourist casinos, operating in locations that hold the title of natural heritage of humanity, such as Fernando de Noronha, Iguaçu National Park, Pantanal, etc.
The project also provides for the operation of casinos on cruise ships, bingo houses in stadiums, always with limits on the number of licenses granted. It also deals with the authorization for gambling establishments, with minimum share capital, accreditation for 25 years and the obligation to identify winners for cash prizes above the income tax exemption limit.
It is true that the referred project has been generating heated controversy, including in the legislative houses, being still pending, at the moment, of appreciation by the Federal Senate, where it was forwarded.
It is said that the legalization of gambling in Brazil will cause numerous social losses, ranging from money laundering, drug trafficking and prostitution, to gambling addiction, which is a disease classified by the International Code of Diseases - ICD, passing through by the moral degradation of society and by the impoverishment of families.
On the other hand, there are objections to the increase in revenue, the generation of jobs and the opportunities to promote regional development and tourism, all due to legalization.
In short, we believe that the conscious legalization of games of chance is the best path to be followed by Brazil, since the bill is quite modern and contains several devices intended for the correct implementation of this type of entertainment that will certainly bring many gains to the State and for society.
It is fundamental and essential, however, that there is a strict, careful and constant inspection by the public power, through not only the police agencies but also the Public Ministry, preventing corruption in the system and making gambling the source of support for organized crime, including the so-called “white collar”.
Ricardo Antonio Andreucci
Criminal Justice Prosecutor of the Public Ministry of Sao Paulo. Doctor and Master in Law. Postdoctoral fellow at the Federal University of Messina – Italy. Pedagogical coordinator of ANDREUCCI EDUCATIONAL. University professor of preparatory courses for entry into Legal Careers and OAB. Author of several works published by Editora Saraiva. Writer and speaker.
Source: Empório do Direito
