ILLEGAL BETTING CRIME

Although online gambling is prohibited in our country, online betting is permitted. However, this is not a matter of anyone being able to play as they please or wherever they want. Betting cannot be offered through any online betting site except in locations designated and licensed by the state. If such a situation occurs, the person playing will have committed the crime of 'illegal betting'. Legal betting can only be played and offered in places authorized by the Sports Toto Organization, which is affiliated with the Ministry of Youth and Sports. The crime of illegal betting is regulated by Law No. 7258, which includes 5 separate types of offenses: the crime of operating betting and betting with foreign connections, the crime of acting as an intermediary, the crime of encouraging betting, and the crime of betting itself.

The Crime of Operating a Gambling Facility and Gambling Facilitated by Foreign Connections

As stated in Article 5 of Law No. 7258;

a) Those who organize or facilitate fixed-odds and pari-mutuel betting or games of chance based on sports competitions shall be punished with imprisonment from three to five years and a judicial fine of up to ten thousand days.

(b) Persons who enable access from Türkiye, via the internet or other means, to fixed-odds or pari-mutuel betting or games of chance based on sports competitions held abroad shall be punished with imprisonment from four to six years

Based on the information above, those who organize or facilitate betting on domestic sports competitions face imprisonment of 3 to 5 years, while those who organize betting on competitions held abroad face imprisonment of 4 to 6 years.

Crime of Providing Place and Opportunity

As stated in the relevant law mentioned above, those who provide a place or opportunity for gambling games played within the country are sentenced to imprisonment for 3 to 5 years. In addition to the imprisonment, a judicial fine of up to 10,000 days is also stipulated. For sports competitions played abroad, this period increases to imprisonment for 4 to 6 years.

The Crime of Facilitating Money Transfer

As stated in the relevant law;

c) Persons who act as intermediaries in the transfer of money in connection with fixed-odds or pari-mutuel betting or games of chance based on sports competitions shall be punished with imprisonment from three to five years and a judicial fine of up to five thousand days.

As mentioned above, individuals who facilitate money transfers face imprisonment of 3 to 5 years and a judicial fine of up to 5000 days. The bank card used for facilitating the transfer is also blocked. Since the law makes no distinction regarding gambling money, penalties apply regardless of whether the account used for gambling is the same account from which the money is withdrawn.

The Crime of Encouraging Gambling

As stated in the relevant law;

c) Those who encourage individuals to participate in fixed-odds or mutual betting or games of chance based on sports competitions through advertising or other means shall be punished with imprisonment from one to three years and a judicial fine of up to three thousand days.

As stated above, those who encourage gambling through advertising are subject to imprisonment for 1 to 3 years and a judicial fine of up to 3000 days. Advertising or other forms of encouragement are sufficient for this crime to occur. It is not necessary for the perpetrator to be a gambler or player in a game of chance.

The Criminal Aspects of Illegal Gambling

As stated in the relevant provision of the law;

d) Those who participate in fixed-odds or pari-mutuel betting or games of chance based on sports competitions shall be punished with an administrative fine of five thousand to twenty thousand Turkish Lira by the highest local administrative authority. In connection with the offenses covered by this article, any property allocated to, used in, or constituting the subject matter of fixed-odds or pari-mutuel betting or games of chance based on sports competitions, as well as any assets contributed for or obtained through the playing of these games, shall be confiscated in accordance with the provisions of the Turkish Penal Code No. 5237 dated 26/9/2004 concerning the confiscation of property and proceeds. For offenses covered by this article, specific security measures shall be imposed on legal entities.

As mentioned above, the penalty for illegal gambling ranges from 5000 TL to 20000 TL. Unlike the other crimes mentioned above, the legislator has not prescribed imprisonment for this type of offense. It is considered more of a misdemeanor than a crime, and an administrative fine is imposed. If the fine is not paid, imprisonment is not imposed; enforcement proceedings are initiated. The competent authority for imposing fines is the governorship in provinces and the district governorship in districts. The imposition of the penalty is left to the discretion of the competent authority. Generally, it is revealed through investigations conducted by MASAK (Financial Crimes Investigation Board) regarding money transferred from a person's bank account to illegal sites or individuals, or money received into their bank account.

RELEVANT SUPREME COURT DECISIONS

Summary: The defendant argued that he only placed bets online. Although an examination of the seized computer indicated that large sums of money had been bet, the absence of any computer analysis or expert report in the case file or UYAP records that could serve as a basis for the verdict, and the lack of investigation into how the bets were placed, necessitates a reversal of the conviction.

TC.

Supreme Court Criminal Chamber

E: 2015/7210 K: 2016/20433 KT: 29.06.2016

COURT: Primary Criminal Court
CRIME: Violation of Law No. 7258

The judgment rendered by the Local Court was appealed; the case was examined considering the timeliness of the appeal, the nature of the decision, and the date of the crime, and the matter was considered and deliberated upon:

Since there were no grounds for rejecting the appeal, the case proceeded to the merits.

Based on an examination of the transcripts, documents, and reasoning reflecting the trial process in which the conscientious conviction was formed;

1- The defendant's defense that he did not facilitate illegal online betting for anyone, but only participated himself, and the fact that during the search, no one playing games or placed betting slips were found in the workplace except for a computer and barcode printer, and despite the court's reasoning stating that a large number of bets were placed on the seized computer, there is no computer analysis or expert report in the file or in the UYAP records that could be used as a basis for the judgment; if such a report exists, it should be added, otherwise the computer case and other items seized from the workplace should be submitted to an expert for evaluation in accordance with Article 5/2 of Law No. 7258. According to the article, after obtaining a detailed expert report on "whether the illegal betting site allows access to and participation in all types of betting or games of chance played abroad via the internet or other means from Turkey" and "on what dates and how frequently the illegal betting site was accessed and the amount of bets placed," and after discussing in the judgment how the defendant facilitated and provided the means for other individuals to play illegal football betting or games of chance, the legal situation should have been assessed. However, the conviction decision was given as a result of an incomplete prosecution

2- According to the acceptance:

Although the defendant was sentenced to imprisonment for an intentional crime and subsequently deprived of certain rights pursuant to Article 53 of the Turkish Penal Code No. 5237, a reassessment is necessary due to the annulment of certain provisions of the aforementioned article by the Constitutional Court's decision dated 08/10/2015, numbered 2014/140 E., 2015/85 K., published in the Official Gazette dated 24/11/2015, number 29542

Since the judgment is deemed to require reversal and the defendant's grounds for appeal are found to be valid, it is unanimously decided on June 29, 2016, that the JUDGMENT be REVERSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which should be applied pursuant to Article 8/1 of Law No. 5320, contrary to the notification, and that the case be sent back to the court for the proceedings to be continued and concluded from the stage prior to the reversal.

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Trainee Lawyer Fatih CEYHAN