The Crime of Providing Place and Opportunity for Gambling

Definition

The Crime of Providing Place and Opportunity for Gambling is regulated under Article 228 of the Turkish Penal Code, which is in the seventh section titled “Crimes Against Public Morality.” For the act of gambling to occur, two conditions must be met:

Purpose of Gaining Profit
The profit and loss are dependent on chance.

Indeed, in the final paragraph of the relevant article, it is stated that “In the application of the Penal Code, gambling refers to games that are conducted for profit and where the profit and loss are dependent on chance.”

This crime can be committed in two ways:

Physical
In a virtual environment

Is the Crime of Providing Place and Facilities for Gambling Subject to Complaint?

The crime of providing place and facilities for gambling is regulated under the Turkish Penal Code (TCK) in the section titled “Crimes Against Public Morality” and is not subject to complaint.

Mediation

The crime of providing place and facilities for gambling is not among the crimes subject to mediation.

The Simple Form of the Crime

According to the first paragraph of Article 228 of the Turkish Penal Code (TCK):

“Anyone who provides a place and facilities for gambling shall be punished with imprisonment from one to three years and a judicial fine of no less than two hundred days.”

The imprisonment sentence cannot be converted into a judicial fine in this case, as the provision explicitly sets the imprisonment sentence in conjunction with the judicial fine.

Aggravated Forms of the Crime

According to the second paragraph of Article 228 of the Turkish Penal Code (TCK):

“If a place and facilities are provided for children to gamble, the punishment will be increased by a factor of one.”

Additionally, according to other paragraphs of the same article:

“If the crime is committed through the use of information systems, the punishment shall be imprisonment from three to five years and a judicial fine ranging from one thousand to ten thousand days.”

“If the crime is committed within the framework of an organization’s activities, the punishment will be increased by half.”

Lesser Punishable Forms of the Crime

No provision has been made for a situation that would require a lesser punishment for the relevant crime.

Effective Remorse

Effective remorse, according to the provisions of the law, involves a reduction or removal of the penalty in certain crimes based on personal reasons. Therefore, it is not applicable to every crime. Effective remorse cannot be applied to the crime of providing a place and means for gambling.

Statute of Limitations

The ordinary statute of limitations for the crime of providing a place and means for gambling is 8 years.

Relevant Court of Cassation Rulings

“According to the contents of the record dated 10.05.2015, the defendant played the game called bingo with two 32-inch LCD televisions, a camera, and a top-and-bottom box for bingo. It was determined that the action attributed to the defendant constituted the crime of violating Law No. 1072, and upon examining the rulings made for the crime of providing a place and means for gambling and the violation of Law No. 1072…”

According to Article 1 of Law No. 1072 on Roulette, Tilt, and Similar Gaming Devices and Machines, it is prohibited to possess and “operate” roulette, tilt, foosball, and similar games of chance or skill, whether automatic, semi-automatic, or manually operated, or to bring them into the country or manufacture them. Furthermore, there is no provision regarding the imposition of additional penalties for providing a place and means for gambling when these devices are used to facilitate gambling under this law. In the case of operating a bingo machine, which falls under the scope of Law No. 1072, and facilitating bingo, according to Article 44/1 of the Turkish Penal Code (TCK), which states, “A person who causes the commission of multiple distinct crimes by a single act shall be punished for the crime carrying the heaviest penalty,” the defendant should have been sentenced under the specific provisions of Law No. 1072, Articles 1 and 2, instead of acquitting them for violating Law No. 1072 and convicting them for providing a place and means for gambling.

This is contrary to the law, and the defendant’s appeal was deemed valid. Therefore, the judgment is overturned pursuant to Article 321 of the Code of Criminal Procedure No. 1412 and the final paragraph of Article 326, with the defendant’s acquired rights preserved, for the reasons related to the penalty amount, in accordance with Article 8/1 of Law No. 5320, and the case was sent back for reconsideration. The decision was made unanimously on 22.04.2021.” (Court of Cassation 8th Criminal Chamber 2021/3465 E., 2021/12257 K.)

In the crime of providing a place and means for gambling, as regulated in Article 228 of the Turkish Penal Code (TCK), the term “gambling” is defined in the fourth paragraph of the same Law as “games conducted for profit, where the gain and loss depend on chance.” In the case at hand, in the defendant’s defense and in the statements of the individuals who played the game together, it was mentioned that they played a game after their meal. The defendant also participated in the game, but no evidence was found that the defendant was involved in running a gambling game at the workplace apart from the event in question. Therefore, instead of acquitting the defendant for the unfulfilled elements of the crime, a conviction was made in writing.

This is contrary to the law, and the defendant’s appeal was deemed valid. Consequently, the judgment is overturned due to this reason, in accordance with Article 321 of the Code of Criminal Procedure No. 1412, as required by Article 8/1 of Law No. 5320, and the case was sent back for reconsideration. The decision was made unanimously on 20.02.2020.” (Court of Cassation 8th Criminal Chamber 2017/24058 E., 2020/10161 K.)

“I) Regarding the acquittal judgments for the defendants …, … for the offense of violating Law No. 1072:

Upon examination of the minutes, documents, and reasoning content reflecting the trial process in which the moral conviction was formed:

Since the reasons for the appeal of the Public Prosecutor of that place regarding the actions and the charged offenses were found to be unsubstantiated, and contrary to the opinion of the report, the appeal case is rejected on its merits, and the judgments are upheld.

II) Regarding the acquittal judgments for the defendant … for the offense of violating Law No. 1072 and for the defendants …, …, … regarding the crime of providing a place and means for gambling:

Upon examination of the minutes, documents, and reasoning content reflecting the trial process in which the moral conviction was formed;”

a) Regarding the defendant …;

During the search conducted at the workplace, which the defendant stated he operated, it was found that 75 people were playing a game called bingo, which is based on chance. The witnesses testified that they were playing this game and that the defendants were the operators and employees of the workplace. The equipment used to play the game, as described in the report, consisted of tools and machines that fall under the scope of Article 1 of Law No. 1072. Therefore, in relation to this defendant, the elements of the offenses of violating Law No. 1072 and providing a place and means for gambling are present. However, instead of convicting the defendant for the alleged offenses, even though the defendant stated in court that he operated the workplace and facilitated the bingo game, the judgment was made based on an incorrect reasoning that the defendant’s name was erroneously shown as “Volkan,” and he claimed during his interrogation that he did not operate the workplace. This conclusion is inconsistent with the case file and is deemed to be unjustified.

b) Regarding the defendants … and …;

It has been established that the defendants participated in the crime committed at a place where gambling was conducted. Instead of convicting them for the offense of providing a place and means for gambling, the judgment was made as written.

This decision is unlawful, and since the appeal reasons of the Public Prosecutor are found to be valid, in accordance with the notice, the ruling is to be overturned based on Article 321 of the Code of Criminal Procedure No. 1412 and Article 8/1 of Law No. 5320. The case is to be sent back to the court for the proceedings to continue and be concluded starting from the stage prior to the appeal, as per the unanimous decision made on 07/07/2020.” (Court of Cassation 19th Criminal Chamber, 2020/802 E., 2020/9975 K.)