In ADPF 563, now proposed by PHS – a political party that has four deputies in the new Federal Chamber - lawyer João Caldas da Silva starts from the assumption that "criminalizing the private economic activity of gambling is not adequate and proportional, well legally protected by art. 50 of the LCP and Decree-Law 9.215, of 1946 (moral and good customs), or because the State that prohibits, is the same that exploits the game of chance.
According to the legend, Article 50 of the Criminal Proceedings Act (LCP) and Decree Law 9.215 of 1946 create a situation of inequality that offends the fundamental right of equality provided for in article 5 of the Federal Constitution.
"This happens by reserving to the state the right to exploit the economic activity of gambling alone and to criminalize private exploitation, without acceptable justification," he argues.
In the action, the legend affirms that the liberation of the exploration of games of chance by the private initiative is a clear opportunity of generation of income, of jobs and of collection of taxes, in a frame in which the Federated States need of economic alternatives to return to grow.
"The governor and the mayor of Rio de Janeiro, for example, defend the liberation of the game as an alternative to overcome the fiscal crisis that the federated entities face. The mayor of the city of Rio de Janeiro, Marcelo Crivella has already defended the construction of a tourist complex with resort and casino, " he says.
According to the Party, the maintenance of the prohibition is neither reasonable nor proportional, and none of the motivations for the edition of the norm is currently supported.
"Allowing private initiative to exploit the economic activity of gambling does not offend morals and good manners and is in perfect harmony with the legislation of the vast majority of countries in the world. The prohibition imposed by the norms attacked does not find sustentation and validity in the Constitution of 1988 ", says.
Proposals in Analysis
In April 2016, the STF began to judge RE RE 966,177 in which the Public Prosecution Service of Rio Grande do Sul questioned a judgment of the second instance that considered the atypical conduct of gambling as a criminal contravention "in the face of constitutional principles. "
Minister Luiz Fux, rapporteur of RE 966,177, proposed that the appeal should be judged by the Court with the "stamp" of general repercussion, a suggestion that was approved by the virtual plenary in November 2016. However, the trial was interrupted in June 2017.
In the Federal Senate, PLS 186/14 and in the Chamber of Deputies, PL 442/91 are ready to be seen by the plenary of the two houses. In addition, a possibility arose in March of last year with the possibility of including casinos-resorts in the projects PL 2724/2015, PL 7425/2017 and PL 7413/2017, which form the "Brasil Mais Turismo" proposal.
Source: GMB / Gabriela Coelho - CONJUR