Subject 12-Online Gambling and Betting
- Online Gambling
Gambling and enabling gambling are terms that come from Arabic to our language. The word “gambling” in Turkish means “a game undertaken with the aim of earning money, where the profit and loss depends upon chance. “
The “provider of an environment and means for gambling” refers to real or legal entities that enable gambling to be played by providing an appropriate place in exchange for a certain fee.
According to the Turkish Penal Code, gambling on the internet is not a crime but a misdemeanor. Under the Turkish Penal Code, providing an environment and the means for gambling is a crime, while gambling is not considered a crime but a misdemeanor.
- Providing an Environment or the Means for Gambling
In Turkish Penal Code (TCK), engaging in gambling is considered a crime. The location where the act occurs is evaluated as providing an environment and the means without distinguishing between virtual or real environments. This means that virtual gambling is also considered a crime. Allowing children to gamble is an aggravating factor for this crime.
The penalty for engaging in gambling is prescribed in TCK Article 228 as follows:
(1) Any person who provides an environment or the means for gambling shall besentenced to imprisonment for a period of one to three years and an administrative fine not less than two hundred days.
(2) The penalty to be imposed shall be increased by one fold where an environment or means is provided for children in order to gamble.
(3) In cases where the offense is committed through the use of information systems, imprisonment for a period of three to five years and an administrative fine ranging from one thousand to ten thousand days is imposed.
(4) In cases where the offense is committed within the scope of the activities of an organization, the penalty to be imposed is increased by half.
(5) Legal entities shall be subject to security measures for involvement in these offenses.
(6) In the application of the Penal Code, gambling shall be defined as a game undertaken with the aim of earning money, where the profit and loss depends upon chance.
- Gambling
Since ” gambling” is regulated as a misdemeanor in the Misdemeanors Act, it is not considered a crime in terms of criminal law but is categorized as a misdemeanor.
Accordingly, the penalty for the act of ” gambling” is provided as follows in the Misdemeanors Act: (1) Any person who gambles is subject to an administrative fine of one thousand Turkish Liras. Additionally, the revenue obtained from gambling is confiscated, and a decision is made to transfer ownership to the public.
(2) Regarding this misdemeanor, law enforcement officers are responsible for imposing the administrative fine and confiscation, while administrative superiors decide on the transfer of ownership to the public.
- Blocking Access to Websites Hosting Online Gambling
Pursuant to the Regulation on the Principles and Procedures for the Regulation of Publications on the Internet, Article 12, titled “Crimes that Constitute the Subject of the Decision to Block Access,” allows for the decision to block access regarding publications that constitute the following crimes, which are stated in the Turkish Penal Code numbered 5237, dated 26/9/2004 and for which there is sufficient suspicion: Providing an Environment or the Means for Gambling ” (Article 228) crimes related to publications.
In accordance with Article 8/a-7 of Law No. 5651, decisions to remove content and/or block access are made regarding publications for which there is sufficient suspicion related to the crime of “providing the means and facilities for gambling.”
- Online Betting
- Providing Betting
The act of offering or playing fixed-odds and joint betting or games of chance based on sports competitions in a virtual environment on the internet is not regulated in the Turkish Penal Code but is governed by Law No. 7258 on the Organization of Betting and Games of Chance Based on Football and Other Sports Competitions. According to this law, providing betting services is considered a crime.
According to Law No. 7258 on the Organization of Betting and Games of Chance Based on Football and Other Sports Competitions, the purpose of this law is to establish the central betting system and risk management center related to the organization of fixed-odds and joint betting games on sports competitions, except for horse racing, which require expertise, advanced technology, and substantial financial resources. It also aims to determine the procedures and principles regarding the establishment and operation of agencies under a private law agreement to share the revenue with the General Directorate of Sports Betting by the Presidency of Sports Toto Organization.
According to Article 5 of Law No. 7258 on the Organization of Betting and Games of Chance Based on Football and Other Sports Competitions:
Not based on the authority granted by law;
- a) Those who play fixed odds and joint betting or chance games based on sports competitions or provide a place or opportunity to be played are punished with imprisonment from three to five years and a judicial fine of up to ten thousand days.
- b) Persons who enable fixed odds or joint betting or games of chance based on sports competitions played abroad to be played from Turkey through internet or other means, are sentenced to imprisonment from four years to six years.
- c) Persons who mediate money transfers in connection with fixed odds betting or games of chance based on sports competitions are punished with imprisonment from three to five years and a judicial fine of up to five thousand days.
ç) Those who encourage people to advertise and otherwise play fixed odds or joint betting or games of chance based on sports competitions are punished with imprisonment from one to three years and a judicial fine of up to three thousand days.
- d) Those who play fixed odds or joint betting or chance games based on sports competitions are punished with an administrative fine from five thousand lira to twenty thousand lira by the highest local administrative authority.
In connection with the crimes within the scope of this article, the value of fixed-odds or joint bets or games of chance based on sports competitions, or the goods used in the game or the subject of the crime, and the value of all kinds of assets that are presented to play these games or obtained by playing these games, 26 It is confiscated in accordance with the provisions of the Turkish Penal Code No. 9, dated 2004/5237.
Due to the crimes covered by this article, security measures specific to legal entities are imposed.
Regarding the crimes within the scope of this article, the provisions of Law No.4 of 5/2007/5651 on Regulating Broadcasts on the Internet and Combating Crimes Committed Through These Broadcasts shall be applied.
The workplaces where the crimes within the scope of this article are committed are sealed and closed for three months by the highest local administrative authority without warning. The licenses of workplaces holding business and working licenses are canceled within five working days by the authority authorized to issue the license upon the notification of the highest local administrative fine
In terms of the crimes regulated in sub-clauses (a), (b), (c) and (ç) of the first paragraph and the third and fourth paragraphs of Article 5237 of the Law No. 228, the Criminal Procedure Law dated 4/12/2004 and numbered 5271;
- a) Seizure of immovables, rights and receivables in Article 128,
- b) Detection, listening and recording of the communication in Article 135,
- c) Appointment of a secret investigator specified in Article 139 regardless of whether it is processed within the framework of the organization’s activities,
ç) Monitoring with the technical means specified in Article 140,
Provisions regarding the measures may be applied.
- Betting
In accordance with Law No. 7258 on the Regulation of Betting and Games of Chance Based on Football and Other Sports Competitions, there is no distinction made between physical and virtual environments. Therefore, playing fixed-odds or joint betting or games of chance based on sports competitions on the internet, websites, mobile applications on mobile phones, and social media applications is regulated as a misdemeanor .Individuals who engage in these activities are subject to an administrative fine ranging from five thousand Turkish Liras to twenty thousand Turkish Liras, as determined by the highest local administrative authority, in accordance with Article 5/d of Law No. 7258.
According to Article 5/d of Law No. 7258 on the Regulation of Betting and Games of Chance on Football and Other Sports Competitions,
“Those who play fixed odds or joint betting or chance games based on sports competitions are punished with an administrative fine from five thousand lira to twenty thousand lira by the highest local administrative authority”
- Blocking Access to Websites Hosting Virtual Betting
Regarding offenses falling within the scope of Article 5 of Law No. 7258 on the Regulation of Betting and Games of Chance on Football and Other Sports Competitions, the provisions on blocking access specified in Law No. 5651 dated 4/5/2007, titled “Regulation of Publications Made in the Internet Environment and the Fight Against Crimes Committed Through These Publications,” shall be applied.
In accordance with Article 8/c of Law No. 5651, content removal and/or blocking access decisions shall be made for publications with sufficient suspicion related to the offenses specified in Law No. 7258 on the Regulation of Betting and Games of Chance on Football and Other Sports Competitions.
- Judicial Decisions in Turkish Law
Supreme Court 19th Criminal Division Case Number: 2016/ 4814 Decision Number: 2018 / 5992 Decision Date: 21.05.2018
In the examination conducted based on the records, documents, and reasoning reflecting the proceedings in which the conscientious belief was formed:
It is understood that the defendant, in accordance with the defendant’s defense and the expert reports received at various stages, made announcements under the name of ‘fixed matches’ through his brother’s betting site membership information and his own social media accounts, published a phone number for those who wanted to contact him, and in this way, encouraged gambling or games of chance. Therefore, the defendant shall be granted the right to submit an additional defense in accordance with Article 226/1 of the Code of Criminal Procedure. Instead of sentencing the defendant in accordance with Article 5/1/ç of Law No. 7258, which was in effect on the date of the crime and contained provisions in favor of the defendant, a verdict of acquittal with written justification shall be given for the defendant.
As it is deemed that the objections raised by the Public Prosecutor in the appeal are valid due to the violation of the law, therefore, the judgment is hereby REVERSED in accordance with Article 8/1 of Law No. 5320, to be applied as per Article 321 of the Criminal Procedure Code No. 1412 for . The case file shall be sent to the court for the continuation of the trial from the stage prior to the annulment and its conclusion.The decision was reached unanimously on 21/05/2018.”
- The Legal Nature of Gambling and Betting Debt
It is regulated in the 16th chapter titled ‘Gambling and Betting’ of Law No. 6098 on Obligations.
- Debts Arising from Gambling and Betting
According to Article 604 Turkish Code of Obligations;
“No lawsuit can be filed, and no pursuit can be made regarding debts arising from gambling and betting.
The same provision shall apply to advances knowingly given for gambling or betting and to transactions based on the price difference principle of goods traded on the stock exchange, foreign currencies, and valuable securities, if they have the nature of gambling and betting.”
In the decision of the 19th Civil Division of the Supreme Court , with the Case Number : 2016/20222, Decision number: 2018/6545, Decision Date: December 12, 2018,
“According to the court’s judgment and the adopted expert report, the plaintiff had become a member of the mentioned website in 2011. After losing money, they refrained from using the site for one year. However, upon the site administrators’ contact, they reactivated their membership and continued with the transactions. Despite declaring that they had become aware that the site was a gambling site, they continued to engage in transactions on the site after losing money. Therefore, the court ruled to dismiss the lawsuit on the grounds that the defendant bank could not be held liable for the amount collected due to the transactions knowingly carried out by the plaintiff, in accordance with the principle of good faith. The judgment was appealed by the plaintiff’s counsel”
“Based on the evidence and justifiable reasons on which the decision relies in the file, and considering that there is no error in the assessment of the evidence, all of the appellant’s objections, which were found to be unfounded, are rejected. The decision, which is in accordance with the law and procedure, UPHOLDED the decision unanimously on December 12, 2018. The appeal fee as specified below shall be collected from the plaintiff.”
- Claiming Debts Arising from Gambling and Betting through Lawsuits
According to the Article 605 of Turkish Code on Obligations
“Even if an ordinary debt or promissory note signed by the person who has signed by the gambler or bettor has been transferred to a third party, no one may file a lawsuit or pursue a claim based on them. The rights provided by valuable securities to bona fide third parties are reserved.
Voluntary payments for gambling and betting debts cannot be reclaimed. However, if the conduct of gambling or betting has been unexpectedly prevented by an unforeseen event or the actions of the other party, or if the other party has engaged in fraud in gambling or betting, payments made willingly can be reclaimed.”
- Claims Arising from Lotteries and Other Games of Chance
According to Article 606 of the Turkish Code on Obligation;
“Unless it is allowed by law or authorized authorities, no lawsuits may be filed or claims may be pursued regarding debts arising from lotteries and other games of chance.
In cases where permission has not been granted, the provisions regarding gambling also apply to lotteries and other games of chance.
Lotteries and other games of chance organized in foreign countries in accordance with their own rules cannot benefit from legal protection in Turkey unless authorized authorities have allowed the sale of tickets for them.”
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