German Judge Operates as Magician for Gambling Industry

29 June 2006

According to mediacompany.sohn, a 31-year-old businessman from Heidenheim, Germany had to wait 4.5 years to get a decision from the Strafsenats des Oberlandesgerichts Stuttgart (First penal court of the higher regional court of Stuttgart - OLG). This week OLG Stuttgart rejected the cassation of the public prosecutor's office against the already acquitted District Court of Heidenheim and the District Court of Ellwangen, and acquitted the operator of a private betting office (FILE NUMBER 1 Ss 296/05, judgment from the 26.06.2006).

The defendant was accused of professionally running and organizing a game of chance (§284 has StGB) without a betting license. He operated sports betting over the Internet using an official betting license from Austria.

The judge inevitably decided that the man acted without guilt. The judge had received information from a qualified colleague of the city of Heidenheim indicating that the selling of sports betting tickets was not punishable if the operator used a license that had been issued by Austria. Above that, the judged informed himself of the legal status by consulting with a renowned legal firm. "The risk of an extremely unclear legal status has been created by authorities and courts, and a single citizen can not be blamed. In a constitutional state, only behavior might be punished, when it was clear and recognizable, and here was no deliberate intention," said the court.

In the motivation of the verdict, the judges referred to valid European law, stating, "The European court has also, in two sentences, expressed great doubts of the possibility to punish breaches against the national betting monopoly."

Both lawyers, Guido Bongers and Dr. Bernd Müssig, welcomed the judgment. Following the decision of the Federal Constitutional Court in Baden-Württemberg on March 28, 2006, it should be nearly impossible for the German courts to deliver punishment in pending criminal proceedings cases, and those cases should be put ad acta (redirected from).

"We are glad that the criminalizing of the industry, especially concerning ODDSET, hopefully will end with this sentence", stated both lawyers.

Lawyer Guido Bongers was especially satisfied that the judges referred explicitly to the valid criminal law, which should be noticed also in the current legal status. "It cannot be that the use of a German punishment standard should depend on not being able to influence behavior of third parties-- the advertising and the prevention of becoming addicted of the state lottery companies," he said. The legal regulation deficit cannot be detriment of a single citizen. Until the creation of a new law has been realized, punishment will not be possible.

Rob van der Gaast has a background in sports journalism. He worked for over seven years as the head of sports for Dutch National Radio and has developed new concepts for the TV and the gambling industry. Now he operates from Istanbul as an independent gambling research analyst. He specializes in European gambling matters and in privatizations of gambling operators. Rob has contributed to IGN since Jul 09, 2001.