Unauthorized staging of a game of chance

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The unauthorized organization of a game of chance is a criminal offense that is standardized in Germany in § 284 StGB . The regulation is a central norm of criminal law against gambling , which was given its current version on December 23, 1919.

According to her, anyone who publicly organizes a game of chance or provides the facilities for this without official permission is punished . Unauthorized lotteries are special forms of forbidden gambling that are recorded in accordance with the special regulation of Section 287 of the Criminal Code. The provisions of criminal law are intended to ensure state control over publicly practiced games of chance.

Content and requirements

The roulette table (single table)

In a game of chance, win and loss do not depend essentially on the skills of the player, but are entirely or predominantly determined by chance ; the probability of winning is therefore independent of individual efforts. The player wants to achieve a monetary profit and, as it is formulated in § 3 of the State Treaty on Gambling (GlüStV), has to pay a fee for “the acquisition of a chance to win”. For this reason, games of skill such as billiards , in which the personal skills and experience of the player essentially determine the outcome of the game, are not covered by the regulation.

Eligibility contributions, for example in the form of entrance fees, are not included under the term, as they are always lost. It is also required that there is at least the possibility of profit. However, it is irrelevant here whether this option is the actual intention of the game of chance or whether the stake is only viewed as a “reward” for “passing the time”.

Games of chance in the sense of the regulation are, for example, roulette , dice for money and, above all, slot machine games , which are highly addictive . Of the numerous card games , poker and muckling are games of chance, but not Skat or Schafkopf , which are viewed as games of skill.

Even sports and racing betting is gambling and require official permission. Occasionally, the view is taken that a bet with fixed odds should be classified as a game of skill, since the knowledge of the bettor influences the chance of winning. This minority opinion contradicts the highest court case law , which assumes that the decision on profit and loss does not depend essentially on the knowledge of the players, but is mainly determined by chance, for the assessment of which the game conditions are decisive. The audience is the yardstick for this, but not the particularly experienced participant.

Legal interest and background

Slot machines are highly addictive

Since the criminality of the behavior depends on whether there is an official permit , the provision is an administrative accessory in nature. The offense includes the administrative law prohibition norm as well as the criminal sanction based on it, so that not only criminal courts , but also administrative courts often deal with the interpretation of this central norm.

It is controversial which legal interest should be protected by the norm. According to the prevailing opinion , it should “take the economic exploitation of the natural passion for gambling under state control.” The regulatory purpose of the restrictions then ultimately consists in protecting the players from frivolous loss of assets and thereby protecting the environment from the harmful consequences of fatal gambling.

According to another view, the state control should only protect the player against manipulation - and thus financial damage - in the area of ​​particularly fraud-prone gambling. Others emphasize the economic existence and health of the individual as well as public safety and public health .

This corresponds to § 1 No. 2 GlüStV, according to which the “natural play instinct of the population is to be steered into orderly and monitored paths”, a reason that has been criticized. Thomas Fischer observes that it is difficult to imagine transferring this justification to an “adequate supply of opiates ” that is to be guaranteed by the state .

The further intentions to prevent excessive gaming incentives, not to exploit the passion to play for private or commercial profit purposes or to use the income for charitable purposes would not sufficiently justify the criminalization of unlicensed gaming. Socio-educational influence by the state in the area of ​​licensed gaming was rightly kept within narrow limits. In 2010 the ECJ ruled that state monopolies on sports betting and lotteries were not compatible with European law. “Games and bets which, if played in excess, have socially harmful consequences” can therefore be counteracted in that national legislation tries to “avoid stimulating demand and rather limit the exploitation of people's passion for gambling ".

Because of the state's participation in the profits made through licensed gaming, the public sector has a considerable interest in securing its reservation of approval. For this reason, the standard objectively and indirectly protects the possibility of state revenue as a result of monopoly , an aspect that may be in the foreground of some fiscal considerations, but cannot support the normative context of a punitive reinforcement.

literature

  • Thomas Fischer: Criminal Code and ancillary laws. 60th edition. CH Beck Verlag, Munich 2013, ISBN 978-3-406-63675-2 .
  • Andreas Mosbacher: The criminal liability of gambling, especially sports betting, taking into account European law , in: Ihno Gebhardt, Sabine Miriam Grüsser-Sinopoli (ed.): Glücksspiel in Deutschland. Economy, law, addiction. De Gruyter, Berlin 2008, ISBN 978-3-89949-317-7 , pp. 137-153.
  • Axel Belz: Gambling in criminal law . Elwert Verlag 1993.
  • Dietz: On the problem of criminal gambling law . Dissertation Linz 1993.
  • Heiko Lesch: Sports betting as a game of chance in the sense of § 284 StGB? , in: Gewerbearchiv 2003, p. 321.
  • Heiko Hartmut Lesch: Sports betting via the Internet - Games without borders , in: Journal for Economic and Tax Criminal Law 2005, p. 241.
  • Bernhard Pfister (ed.): Legal problems of sports betting . Verlag CF Müller 1989. ISBN 978-3-8114-1889-9 .
  • Johannes Dietlein : The state gambling on the test stand , in: Bayerische Verwaltungsblätter 2002, p. 161.
  • Gabriele Fruhmann: criminal liability of commercial gambling communities , in: monthly for German law 1993, p. 822.

Individual evidence

  1. ^ A b Mosbacher in: Gambling in Germany. 2008, p. 141.
  2. ^ Mosbacher in: Gambling in Germany. 2008, p. 139
  3. ^ Fischer: Criminal Code and subsidiary laws. 2012, p. 2088.
  4. ^ A b Fischer: Criminal Code and ancillary laws. 2012, p. 2090.
  5. ↑ BGHSt 34, p. 177.
  6. ^ Fischer: Criminal Code and subsidiary laws. 2012, p. 2089.
  7. ^ Karl Lackner, 284 StGB, Unauthorized event of a game of chance , in: Commentary on the Criminal Code, Karl Lackner, Beck, 19th edition, Munich 1997, p. 1274
  8. ^ Mosbacher in: Gambling in Germany. 2008, p. 138.
  9. ↑ BGHSt 11, 209, quoted. according to: Karl Lackner, 284 StGB, Unauthorized organization of a game of chance , in: Commentary on the Criminal Code, Karl Lackner, Beck, 19th edition, Munich 1997, p. 1273
  10. ^ Fischer: Criminal Code and subsidiary laws. 2012, p. 2086 f.
  11. ^ A b Fischer: Criminal Code and ancillary laws. 2012, p. 2087.
  12. ↑ ECJ, judgment of September 8, 2010 (Az. C-316/07).
  13. ^ Mosbacher in: Gambling in Germany. 2008, p. 140.