Illegal betting is betting that is played without any license. According to the Financial Crimes Investigation Board (MASAK) Activity Report for 2023; 25% of the 601,555 suspicious transaction reports are related to illegal betting and gambling crimes.[1] In addition to the fact that one in every four suspicious transaction reports is related to illegal betting and gambling crimes, the fact that these crimes are committed together with the financing of terrorism, tax evasion and drug trafficking crimes reveals the importance of legal regulations regarding these crimes.

The acts that constitute a crime in terms of illegal betting are regulated in Article 5 of Law No. 7258 on the Regulation of Betting and Games of Chance in Football and Other Sports Competitions;

Without the authority granted by the law;

• The crime of playing fixed-odds and joint betting or games of chance based on sports competitions or providing a place or opportunity for them to be played

The act of playing is defined as ensuring the organization of illegal betting games and determining their rules.

The act of providing a place means providing a place that will allow illegal betting games to be played.

The act of providing an opportunity is understood as providing equipment and security in a way that will allow illegal betting to be played.

• Enabling fixed-odds or joint betting or games of chance based on sports competitions played abroad to be played from Turkey by providing access via the internet or otherwise

• Acting as an intermediary in the transfer of money in connection with fixed-odds or joint betting or games of chance based on sports competitions

• Providing advertisements and otherwise encouraging people to play fixed-odds or joint betting or games of chance based on sports competitions

These acts are regulated as crimes in the Law. It should be noted that playing fixed-odds or joint betting or games of chance based on sports competitions is not regulated as a crime in the Law, but as a misdemeanor and is subject to administrative fines.

In addition, the law does not require a result to occur for the crimes in question to occur. In clearer terms, the perpetrator does not need to have provided any benefit to himself or a third party for the acts in question to constitute a crime. Even if the perpetrator has not provided any benefit to himself or a third party, the crime is committed by performing the acts in question.

In its decision dated 27.11.2017, the 19th Criminal Chamber of the Supreme Court of Appeals, Case No: 2015/34596, Decision No: 2017/10121;[2]

In the examination conducted according to the minutes, documents and justification content reflecting the hearing process in which conscientious conviction was formed: In the search conducted, a computer, coupon printer, tampered coupons, note papers and bulletins were seized, in the examination conducted on the computer, it was determined that thousands of connections were made to the sites named www.sanslibet.net and www.superbwin.net and that coupon deposit and printing transactions were made, it was understood that the child who was dragged into crime accepted that he made his friends play bets in his defenses taken at different stages, it was understood that gaining a benefit was not among the elements of the crime defined in both the regulation on the date of the crime and in Article 5 of Law No. 7258 after the amendment made with Article 3 of Law No. 6495, it is against the law to decide on the acquittal of the child who was dragged into crime on the grounds that it was proven that he made him play illegal bets, instead of punishing him for the underlying crime, on the grounds that it was deemed inappropriate.

Another important issue is that in the crime of enabling fixed odds or pari-mutuel betting or games of chance based on sports competitions played abroad to be played from Turkey by providing access via the internet or other means, it is not enough for the competitions where illegal betting games are played to be abroad and the location of the website on the date of the crime should also be investigated.

The Court of Cassation 7th Criminal Chamber, Case No: 2022/6829 and Decision No: 2022/14266, dated 18/10/2022, has the following decision on the subject:[3]

In order to accept that the defendant’s action falls within the scope of Article 5/1-b of Law No. 7258, it is not sufficient for the competitions subject to betting games to originate from abroad, the sites where fixed odds or pari-mutuel betting or games of chance are played that the defendant accesses via the internet must originate from abroad, if it cannot be determined that the sites accessed are from abroad or if the sites are from within the country, the defendant must be convicted in accordance with Article 5/1-a of the said Law.

There is no consensus in the doctrine and court decisions on what the legal value protected by illegal betting crimes is. However, the Constitutional Court and the Court of Cassation are of the opinion that the protected legal value is the society.

The Constitutional Court, in its Decision No: 2016/51 and Decision No: 2016/179, dated 23/11/2016, expressed the protected legal value as follows;[4]

The legal interest protected by the crime included in Law No. 5237 is the protection of public morality and the protection of society and children from the great danger that gambling poses in social terms and the possible disasters it may cause. On the other hand, the legal interest protected by the crime included in the rule in question is the financial interests of real and legal persons who organize betting and games of chance with the permission and authority granted by the state, as well as the interests stated above, and the public institutions and organizations that receive a share of the income of these persons. According to Law No. 7258, the share transferred to sports-related institutions and organizations and other public institutions and organizations from the income obtained by conducting betting and games of chance under the supervision and control of the state constitutes an important source of income for the Turkish economy and sports. In this context, it is understood that if such betting and games of chance are played illegally by accessing the internet or other means, the institutions and organizations in question are deprived of these contribution shares, and that enabling illegal betting and games of chance to be played in this way is also a form of money laundering. It is understood that the legislator, by considering the nature of the crime, the way it is committed, the damage caused to the victim and the legal interest protected, regulates these acts outside the scope of Law No. 5237 and prefers a more severe sanction.

When we look at the material elements of the crime, it is accepted that the subject of the crime is people who play betting or games of chance. The Supreme Court’s opinion is also in this direction. The victim of the crime is the society according to the dominant view in the doctrine and the Supreme Court.[5]

If we need to examine the moral elements of the crime, the crimes regulated in Article 5 of the Law are crimes that can only be committed intentionally and their commission by negligence is not regulated as a crime in the Law. In order to mention the existence of the element of unlawfulness, the acts in question must be committed ‘without relying on the authority granted by the law’.

It should be noted that the Law does not include an effective remorse regulation for the crimes in question. Therefore, the provisions on effective remorse will not be applicable for these crimes.

In addition, the decisions of no prosecution to be given at the end of the investigation are notified to the Spor Toto Organization Presidency and the Spor Toto Organization Presidency may object to these decisions. In cases filed due to crimes defined in the Law, the court notifies a copy of the indictment to the Spor Toto Organization Presidency. In case of an application, the Spor Toto Organization Presidency will be considered as a party to the lawsuit.

Finally, it would be appropriate to mention the protective measures that can be applied for these crimes. According to Article 5 of the Law;

  • The goods allocated to or used in playing betting or games of chance or constituting the subject of the crime and all kinds of assets presented for playing these games or obtained by playing them may be confiscated.
  • The Access Blocking Measure may be applied.

The provisions regarding the measures of the Turkish Criminal Procedure Code;

  • Seizure of real estates, rights and receivables in Article 128,
    • Detection, listening and recording of communication in Article 135,
    • Appointment of undercover investigators in Article 139, regardless of whether they are committed within the scope of organizational activities,
    • Monitoring with technical means in Article 140,

may be applied. As for legal entities, specific security measures are imposed on them. The workplaces where crimes are committed may be sealed and closed for three months without notice by the highest local civil administrator. The licenses of workplaces with a business opening and operation license may be cancelled by the administration authorized to issue the license within five working days upon notification by the highest local civil administrator.

[1] MASAK 2023 Yılı Faaliyet Raporu, s.19, bkz: https://ms.hmb.gov.tr/uploads/sites/12/2024/04/Faaliyet-Raporu-2023.pdf?csrt=10651496599747057642

[2] İçer, Z., & Akıncı, C. (2023). Spor Müsabakalarında Yasadışı Bahis ve Şans Oyunu Suçları (7258 Sayılı Kanun m. 5). Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 29(2), p.992.

[3] İçer, Z., & Akıncı, C. (2023). Spor Müsabakalarında Yasadışı Bahis ve Şans Oyunu Suçları (7258 Sayılı Kanun m. 5). Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 29(2), p.994

[4] İçer, Z., & Akıncı, C. (2023). Spor Müsabakalarında Yasadışı Bahis ve Şans Oyunu Suçları (7258 Sayılı Kanun m. 5). Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 29(2), p.989.

[5] Court of Cassation 19th Criminal Chamber, 29/03/2021, Merits No: 2020/2391, Decision No: 2021/3771.