In a resolution sent to the STF, the Attorney General bases her decision on the lack of four key points:
1. Recognition of the general repercussion on an extraordinary appeal is not, by itself, enough to rule out the scope of ADPF, the application of which is not intended to resolve individual and specific questions.
2. The Union shall legislate privately on consortium and lottery systems. In the area of gambling, there is a broad normative history that denotes the absence of objective and safe parameters about the social, cultural and economic benefits of gambling decriminalization.
3. The custom against legem is unable to revoke criminal offense provided for by law in accordance with the principle of criminal legality.
4. The Legislative Power brings together representatives of the people. It is the appropriate forum for a broad, democratic and transparent discussion about the possible permission and regulation of gambling managed by the private sector.
The Humanist Solidarity Party (PHS) filed in the Supreme Court (STF) the Fundamental Precept of Non-Compliance Arrangement (ADPF) 563, with an injunction seeking the purpose of freeing private gambling. According to the party, rules that prevent the activity from being exploited by individuals unjustifiably offend individual liberty and contradict the constitutional dictates of the economic order and must therefore be declared unrecognized by the 1988 Federal Constitution.
PHS requested preference in the ADPF trial on the news of the privatization of the Exclusive Instant Lottery - LOTEX, on February 6, 2019. The National Mobilization Party – PMN- and the National Confederation of Tourism and Hospitality Workers – CONTRATUH- requested admission to the action, like amici curiae. In an interlocutory decision, the Rapporteur Minister admitted the participation of PMN and CONTRATUH as amici curiae.
According to the action, Article 50 of Decree-Law 3,688 / 1941 (Criminal Offenses Act) and Decree-Law 9,215 / 1946 artificially created a state monopoly on the exploitation of gambling in the country. The PHS maintains that the prohibition offends fundamental rights and freedoms (Article 5, caput and XLI) and the principles of the economic order of free enterprise (Article 1, IV) and free competition (Article 170, caput, IV and sole paragraph) and violates the rules of direct exploitation of economic activity by the State (article 173).
According to the party, the legal concept of gambling is one in which the player, with his skills, cannot interfere with the end result. Thus, it argues, the exploitation of this economic activity is lawful in Brazil, because in the lottery games operated by the Caixa Econômica Federal and the State Lotteries, the player depends solely on luck to lose or win.
“The constitutional principle of isonomy, an essential requirement of any republican and democratic regime, requires that differential treatment be accompanied by sufficient legal causes to support discrimination. It is not accepted that the State imposes or tolerates, without justification, discriminatory treatment in relation to the activity of private initiative,” defends the text.
PHS justifies the need to grant the injunction to suspend the effectiveness of the rules until the final judgment of the action, arguing that the release of private gambling “is a clear opportunity for income generation, jobs and tax collection, in a context in which the federated entities need economic alternatives to grow back ”. On the merits, it requests that article 50 of Decree Law 3,688 / 1941 and Decree Law 9,215 / 1946 be declared not approved by the Federal Constitution. The rapporteur for ADPF 563 is Minister Edson Fachin.
“The opinion of the Attorney General's Office in the ADPF's record, despite opting for its rejection, shows the strength of the argument of not receiving Article 50 of the Law on Criminal Infringements, which prohibits gambling, by the Federal Constitution of 1988,” assures lawyer Luiz Felipe Maia to Games Magazine Brasil.
Maia explains that “PGR's foundation for her opinion was, basically, that the Federal Supreme Court should adopt a 'judicial self-restraint l' approach, consistent with the maintenance of legal order and harmony between the Powers of the Republic with regard to endowment that characterizes the Legislative Power'. In other words, that the Supreme Court should not create or repeal laws, because such function is up to the National Congress, which is currently poring over the matter.”
“We have seen in many cases the STF creating norms, such as the issue of criminalization of homophobia, abortion of anencephalic, prison after second instance, among other cases. The "self-restraint" argument, therefore, seems fragile and does not address the main point: if in post-1988 criminal law such a contraventionary rule would be legally effective because it contravened the principles of minimum criminal law and free enterprise. Now we wait for the action to be put on the agenda to see how our Supreme Court will decide,” adds the FYMSA law firm's expert lawyer.
Source: GMB
