Brazil's Supreme Court resumes work and will decide whether the ban on gambling, as stipulated in 1941 legislation, is compatible with the Constitution.

The Supreme Federal Court – STF resumes in-person judgment sessions this Monday (3) after the Judiciary recess. The first session of the second semester is scheduled for 14 pm on Monday. The first item on the agenda will be the discussion on the rules for purchasing vehicles with tax exemption for people with disabilities.

On the agenda for next Wednesday (5), the Plenary will discuss whether article 50 of the Law of Criminal Offenses (Decree-Law 3.688/1941), which prohibits the exploitation of games of chance, violates the constitutional principle of free initiative. The discussion is the subject of RE 966177 , with general repercussion (Theme 924).

Currently, anyone who organizes or maintains this type of gambling can be punished by the courts with fines and other penalties stipulated by law.

The ministers will analyze whether this prohibition, created in 1941, is still compatible with the Federal Constitution or if it has become outdated. In practice, the court will define whether operating gambling should continue to be a prohibited activity subject to punishment or whether it will cease to be treated as an illegality.

By decision of the Virtual Plenary, the ministers recognized the general repercussion of the topic. The specific case to be examined is Extraordinary Appeal (RE) 966177, in which the Public Prosecutor's Office of Rio Grande do Sul questions a ruling by the Appeals Panel of the Special Criminal Courts in the state that considered the conduct of operating a gambling establishment atypical, disregarding the practice as a criminal offense on the grounds that the foundations that supported the prohibition do not align with current constitutional principles.

Reporting on the appeal, Justice Luiz Fux stated that the issue is controversial and involves relevant constitutional matters from an economic, political, social, and legal standpoint, transcending the subjective interests of the case, and therefore deserves reflection by the Supreme Federal Court (STF). “The issue submitted to the Supreme Federal Court is eminently constitutional, since the lower court dismissed the criminal nature of gambling based on constitutional precepts relating to free enterprise and fundamental freedoms, provided for in articles 1, item IV; 5, item XLI; and 170 of the Federal Constitution,” he stated. The Justice emphasized that all Criminal Appeals Panels of the Court of Justice of the State of Rio Grande do Sul have understood the matter in the same way, meaning that in Rio Grande do Sul the practice of gambling is no longer considered a criminal offense. “Thus, I consider the relevance of the topic undeniable, requiring the recognition of its general repercussion,” Fux asserted.

According to Article 50 of the Law on Criminal Offenses, establishing or operating a gambling establishment in a public place or a place accessible to the public, whether or not an entrance fee is charged, is a criminal offense punishable by simple imprisonment for three months to one year, and a fine. In 2015, a new law (Law 13.155/2015) updated the fine – which was “from two to fifteen contos de réis” – to R$ 2,000 to R$ 200,000 for anyone found participating in the game, even online or through any other means of communication, as a bookmaker or bettor.