1. INTRODUCTION
Technological advancements have
led to the relocation of many economic and commercial activities to digital
environments, while also enabling the organization of betting and games of
chance via the internet. In this context, the ability of betting companies
operating abroad to reach users located in Türkiye through their websites has
significantly contributed to the proliferation of illegal betting activities in
the digital sphere.
In Turkish law, the primary
regulation governing betting and games of chance based on sporting competitions
is Law Nr. 7258 on the Regulation of Betting and Games of Chance in Football
and Other Sports Competitions. The legislator provides that betting and gaming
activities relating to sporting events may only be conducted through
state-authorized entities and criminalizes betting activities carried out
outside this framework under various offense types. An examination of Article 5
of the Law shows that different forms of illegal betting activities related to
sporting competitions are defined as separate offenses.
Article 5/1-b of Law Nr. 7258
constitutes a specific criminal provision developed under Turkish criminal law
in response to the global organization of sports betting and games of chance
through the internet. The provision criminalizes any person who, without any authorization
granted under the Law, facilitates participation from Türkiye in fixed-odds or
pari-mutuel betting or games of chance based on sporting competitions that are
operated abroad by providing access via the internet or by any other means.
Accordingly, the offense specifically focuses on conduct that renders
foreign-based betting operations accessible and playable from within Türkiye
through digital or other means of access.
The said provision is primarily
intended to prevent international betting operators, particularly those
operating through the internet, from accessing the Turkish market.
Nevertheless, in practice, several issues remain controversial, including the
scope of the offense, the identity of the perpetrator, the acts capable of
constituting the offense, and, in particular, how the boundary between this
offense and the offense set out under Article 5/1-a should be drawn.
This article first examines the
relationship between the offense set out under Article 5/1-b of Law Nr. 7258
and the offense of providing a place and opportunity for gambling under Article
228 of the Turkish Penal Code. It then analyzes the offense in accordance with
the general framework of criminal offense analysis. The primary objective of
this article is to examine the practical issues arising, particularly regarding
the perpetrator and act elements of the offense, and to delineate the scope of
the offense in light of the case-law of the Court of Cassation and the views
expressed in legal doctrine.
2. RELATIONSHIP WITH THE OFFENSE
OF PROVIDING A PLACE AND OPPORTUNITY FOR GAMBLING UNDER ARTICLE 228 OF THE TURKISH
PENAL CODE
Article 228 of the Turkish Penal
Code criminalizes any person who provides a place and opportunity for gambling.
Furthermore, Article 228/3 of the Turkish Penal Code designates the commission
of the offense through the use of information systems as an aggravated form of
the offense. By contrast, Article 5/1-b of Law Nr. 7258 criminalizes any person
who facilitates participation from Türkiye in fixed-odds or pari-mutuel betting
or games of chance based on sporting competitions operated abroad by providing
access via the internet or by other means.
Article 228 of the Turkish Penal
Code concerns the act of providing a place and opportunity for gambling. Under
Article 228/6 of the Turkish Penal Code, "gambling" is defined as
games played for financial gain in which profit and loss depend on chance. By
contrast, the subject matter of Article 5 of Law Nr. 7258 is limited to
fixed-odds and pari-mutuel betting or games of chance based on sporting
competitions. The terms used in this provision are defined as follows:
The term "pari-mutuel
betting" is defined under Article 2/1-h of Law Nr. 5738 on the Provision
of Fixed-Odds and Pari-Mutuel Betting Games Based on Sporting Competitions to
Private Legal Entities as betting games based on predicting the results of
sporting competitions organized both in Türkiye and abroad, in which a
predetermined percentage of the betting proceeds is distributed as prizes among
participants who correctly predict the results.
The term "fixed-odds
betting" is defined under Article 2/1-n of Law Nr. 5738 as betting based
on predicting the results or events of sporting competitions organized in
Türkiye or abroad, in which participants who correctly predict the results are
entitled to prizes calculated according to predetermined betting odds.
The term "games of
chance" is defined under Article 2 of Decree Law Nr. 320 as lotteries,
numerical games, instant-win games, and similar games played in return for
cash.
Finally, the term "sporting
competition" is defined under Article 2/1-ö of Law Nr. 5738 as official,
private, representative, national, or international sporting competitions
organized by the relevant institutions and organizations in Türkiye or abroad.
In light of these definitions,
it is apparent that the concepts referred to in Article 5 of Law Nr. 7258 fall
within the general concept of gambling but are narrower in scope than gambling
as a whole. Accordingly, Article 5 of Law Nr. 7258 may be regarded as a special
provision (lex specialis) in relation to Article 228 of the Turkish
Penal Code. This position is likewise supported in legal doctrine:
“Fixed-odds and pari-mutuel
betting or games of chance based on sporting competitions are, in essence,
games in which profit and loss depend on chance for persons other than those
participating in such betting or games. Accordingly, since they are also conducted
for financial gain, they fall within the broader concept of gambling. However,
as they relate exclusively to fixed-odds and pari-mutuel betting or games of
chance based on sporting competitions, they constitute a specific form of
gambling. It therefore follows that the two offenses should be regarded as
protecting the same legal interest, one being regulated under the general code
and the other under a special provision. Accordingly, a general–special
provision (lex generalis–lex specialis) relationship exists between the two
offenses. Consequently, Article 228 of the Turkish Penal Code is inapplicable
to the acts falling within the scope of Law Nr. 7258. It should be
noted that this conclusion applies to Articles 5/1-a and 5/1-b of Law Nr. 7258.”
[1]
Accordingly, Article 228/3 of
the Turkish Penal Code applies only to gambling conducted via the internet that
does not qualify as fixed-odds or pari-mutuel betting based on sporting
competitions. Online casino games, slot machines, roulette, and other digital
games of chance unrelated to sporting competitions may therefore fall within
its scope. Law Nr. 7258 specifically sets out betting and games of chance based
on sporting competitions. Consequently, where illegal betting based on sporting
competitions is involved, Article 228/3 of the Turkish Penal Code, as the
general provision, does not apply.
The case law of the Court of
Cassation likewise establishes that conduct facilitating participation in
betting based on sporting competitions constitutes the offense set out under
Article 5/1-a or Article 5/1-b of Law Nr. 7258, and that no conviction can
additionally be applied under Article 228 of the Turkish Penal Code. In this
regard, the relevant part of the Decision, bearing the Basis number 2022/6090,
the Decision number 2024/7583 and dated 10.10.2024, of the 8th Criminal
Chamber of the Court of Cassation, reads as follows:
“(...) considering that the act
of facilitating participation in betting based on sporting competitions
constitutes the offense set out under either Article 5/1-a or Article 5/1-b of
Law Nr. 7258, depending on whether the betting website is based in Türkiye or
abroad, it is contrary to the first paragraph of Article 225 of Law Nr. 5271 to
divide what constitutes a single act in legal terms and, on that basis, also
enter a separate conviction for the offense of providing a place and
opportunity for gambling.” [2]
3. LEGAL INTEREST PROTECTED BY
THE OFFENSE
According to the Constitutional
Court, the legal interests protected by the offenses set out under Article 5 of
Law Nr. 7258 are, similarly to the offense of providing a place and opportunity
for gambling under Article 228 of the Turkish Penal Code, public morality, the
protection of society and children from gambling, as well as the financial
interests of persons authorized by the State to organize betting and games of
chance and of the public institutions and organizations that receive a share of
the revenues generated by such activities. This was stated by the
Constitutional Court under the Decision, bearing the Basis number 2016/51, the
Decision number 2016/179 and dated 23.11.2016, as follows:
“(...) The legal interest
protected by the offense under Law Nr. 5237 is the protection of public
morality and the protection of society and children from the significant social
dangers and potentially serious consequences associated with gambling. By contrast,
the legal interest protected by the provision at issue includes not only those
interests but also the financial interests of the natural persons and legal
entities authorized by the State to organize betting and games of chance, as
well as of the public institutions and organizations that receive a share of
the revenues generated by such activities. Under Law Nr. 7258, the revenues
generated from betting and games of chance conducted under the supervision and
control of the State constitute an important source of funding for
sports-related institutions and organizations, as well as other public
institutions and organizations. In this context, where such betting and games
of chance are operated illegally via the internet or other means, those institutions
and organizations are deprived of their respective revenue shares. Furthermore,
facilitating such illegal betting and games of chance also serves as a means of
money laundering. It is therefore understood that, in enacting the provision at
issue , the legislature, having regard to the nature of the offense, the manner
in which it is committed, the harm suffered by the victim, and the legal interest
protected, deliberately regulated such conduct outside the scope of Law Nr.
5237 and provided for a more severe sanction. (...)” [3]
4. MATERIAL ELEMENTS OF THE
OFFENSE
4.1. Subject of the
Offense
According to the settled case
law of the 19th Criminal Chamber of the Court of Cassation, the
subject of the offenses set out under Article 5 of Law Nr. 7258 consists of the
persons participating in betting and games of chance. The relevant part of the
Decision, bearing the Basis number 2020/2391, the Decision number 2021/3771 and
dated 29.03.2021, of the 19th Criminal Chamber of the Court of
Cassation, reads as follows:
“In the present case, the victim
of the offense defined under Article 5/2 of Law Nr. 7258, with which the
defendants are charged, is society, whereas the persons participating in
betting constitute the subject of the offense (...).” [4]
4.2. Perpetrator
The offenses set out under
Article 5 of Law Nr. 7258 concerning illegal betting or games of chance based
on sporting competitions may be committed by any person. Accordingly, these
offenses do not constitute special offenses. [5]
On the other hand, as will be
explained below, the conduct constituting the offense under Article 5/1-b
consists of facilitating participation from Türkiye in betting or games of
chance operated abroad by providing access via the internet. Where such facilitating
conduct takes place in the online environment, it is necessary, in order to
determine the perpetrator of the offense, to examine the definitions set out under
Law Nr. 5651 on the Regulation of Publications on the Internet and Combating
Crimes Committed through Such Publications. According to Article 2, entitled
"Definitions", of Law Nr. 5651, the terms "content
provider" and "hosting provider" are defined as follows:
“Content provider”: Any natural
persons or legal entities that produce, modify, or provide any information or
data made available to users through the internet.
“Hosting provider”: Any natural
persons or legal entities that provide or operate the systems hosting services
and content.
Pursuant to Article 4/1 of Law
Nr. 5651, a “content provider” is liable for all content that it makes
available through the internet. Pursuant to Article 5/1 of Law Nr. 5651,
however, a “hosting provider” is under no obligation to verify the content it hosts
or to investigate whether such content or activity is unlawful. In light
of these provisions, where the conduct of facilitating participation takes
place in the online environment, the content provider will be regarded as the
principal perpetrator of the offense under Article 5/1-b of Law Nr. 5651.
This is because it is the content provider that creates and makes the relevant
content available. It should be emphasized that the content provider
facilitates illegal betting in the online environment. Although a content
provider is not a hosting provider within the meaning of Article 5/1 of Law Nr.
5651, it facilitates participation by making the relevant content accessible
online. Nevertheless, it is submitted that a hosting provider should not incur
criminal liability for this offense. This is because a hosting provider merely
provides hosting services and is under no obligation to know whether its
hosting services are being used for criminal purposes. It should be noted,
however, that a hosting provider may incur criminal liability where it acts
with criminal intent and the requirements for accomplice liability are
satisfied. On the other hand, the commission of this offense does not require
any special perpetrator status. Accordingly, a hosting provider may also act as
a content provider, in which case it may be held criminally liable as the
perpetrator. [6]
4.3. Victim
According to the prevailing view
in legal doctrine and the settled case law of the Court of Cassation, the
victim of the offense is society. As noted in the above-mentioned Decision,
dated 29.03.2021, of the 19th Criminal Chamber of the Court of
Cassation, the Court expressly states that the victim of the offense under
Article 5/1-b of Law Nr. 7258 is society.
4.4. Conduct
The conduct constituting the
offenses set out under Article 5 of Law Nr. 7258 is as follows;
Article 5/1-a of Law Nr. 7258 –
Conduct: Operating, or providing a place or opportunity for, fixed-odds or
pari-mutuel betting or games of chance that are neither organized nor caused to
be organized by the Presidency of the Sports Toto Organization in accordance
with the related applicable regulations.
Article 5/1-b of Law Nr. 7258 –
Conduct: Facilitating participation from Türkiye in fixed-odds or pari-mutuel
betting or games of chance based on sporting competitions operated abroad by
providing access via the internet or by other means.
Article 5/1-c of Law Nr. 7258 –
Conduct: Acting as an intermediary in the transfer of funds relating to such
games.
Article 5/1-ç of Law Nr. 7258 –
Conduct: Encouraging participation in such games.
The conduct set out under
Article 5/1-b of Law Nr. 7258 consists of facilitating participation from
Türkiye in fixed-odds or pari-mutuel betting or games of chance based on
sporting competitions operated abroad by providing access via the internet or
by other means. By virtue of the phrase “via the internet or by other means”,
the provision encompasses not only access through the internet but also access
established through any form of remote connection made possible by
technological developments, thereby enabling participation from Türkiye in
betting or games of chance based on sporting competitions operated abroad. [7]
There is debate in both legal doctrine
and judicial practice as to whether the phrase “operated abroad” in the
provision qualifies the sporting competition or the betting or game of chance
itself. In its settled case law, the 19th Criminal Chamber of the
Court of Cassation has consistently held that, in determining whether the
conduct falls within Article 5/1-a or Article 5/1-b, the decisive criterion is
not the location where the sporting competition takes place, but rather the location
of the betting operation or the website through which access is provided for
the purpose of operating betting. Accordingly, where the betting website is
operated from abroad, the conduct falls within the scope of Article 5/1-b;
where it is operated from within Türkiye, Article 5/1-a applies. The relevant part
of the Decision, bearing the Basis number 2020/4413, the Decision number
2021/6614 and dated 15.06.2021, of the 19th Criminal Chamber of the
Court of Cassation, reads as follows:
“Articles 5/1-a and 5/1-b of Law
Nr. 7258 criminalize the operation of, or the facilitation of participation in,
fixed-odds or pari-mutuel betting or games of chance based on sporting
competitions in violation of the provisions of the Law, while prescribing
different penalties depending on whether the betting operation is operated from
abroad. Article 5/1-b provides that ‘persons who facilitate participation from
Türkiye in fixed-odds or pari-mutuel betting or games of chance based on
sporting competitions operated abroad by providing access via the internet or
by other means...’. Having regard both to the explanatory memorandum
accompanying the provision and to the wording ‘by providing access via the
internet or by other means’, the decisive criterion for determining whether the
conduct falls within Article 5/1-a or Article 5/1-b is not the location where
the football or other sporting competitions on which the bets are placed take
place, but rather the location of the betting operation or, in light of current
technological developments, the website through which access is provided for
the purpose of operating betting. Accordingly, although the expert’s
report prepared following the retrial stated that the football matches
appearing on the betting slips found on the computer had been played abroad and
therefore concluded that the defendant's conduct fell within the scope of
Article 5/1-b of Law Nr. 7258, the legal status of the defendant should have
been assessed only after determining, where necessary through inquiries to the
Information and Communication Technologies Authority and other relevant
sources, the location of the website ‘www.korner24bet.com’, through which the
defendant was found to have operated betting, as of the date of the offense
(...).” [8]
However, the wording of Article
5/1-b of Law Nr. 7258 is also capable of being interpreted as requiring that
the sporting competition on which the betting or game of chance is based be
held outside Türkiye. In this regard, under the Decision, bearing the Basis
number 2016/68, the Decision number 2016/57 and dated 29.11.2016, of the 16th
Criminal Chamber of the Regional Court of Appeal of Istanbul, the court adopted
the view that the sporting competition itself must take place abroad and held
accordingly:
“(...) an expert’s examination
should be conducted to decrypt the software preventing access to the betting
slips placed on the website ‘http://www (...)’ and, if access to the
contents of those betting slips is obtained, an expert’s report should be
obtained to determine whether the football matches on which the bets were
placed involved Turkish football teams or foreign football teams. If it is
concluded that the defendant operated betting on sporting competitions held in
Türkiye, a conviction should be entered under Article 5-a of Law Nr. 7258;
whereas, if it is established that the defendant operated betting on sporting
competitions held abroad, a conviction should be entered under Article 5-b of
Law Nr. 7258 (...)”. [9]
This divergence in the case law
clearly reflects the ambiguity in the wording of the provision. Legal doctrine likewise
recognizes that, owing to the wording of the Law, the provision is open to two
different interpretations: one requiring that the betting or game of chance be
operated abroad, and the other requiring that the sporting competition on which
the bet is placed take place abroad. [10]
As is apparent from the
above-mentioned Decision of the 19th Criminal Chamber of the Court
of Cassation, the Court requires that, in order to distinguish correctly
between the two provisions, it be determined beyond doubt which paragraph
covers the perpetrator's conduct. To that end, it emphasizes that an expert’s
examination should be carried out on the seized computer and any other relevant
items in order to determine the location of the website through which access
was provided for the purpose of operating betting. Otherwise, not only does
rendering a judgment on the basis of an incomplete investigation and
insufficient reasoning constitute a ground for quashing the judgment, but
failure to determine which paragraph applies to the perpetrator's conduct is
also regarded as resulting in the imposition of an incorrect sentence, thereby
requiring the judgment to be quashed.
4.5. Result
The completion of the illegal
betting offenses under Article 5 of Law Nr. 7258 does not depend on the
occurrence of any particular result. Accordingly, these are resultless (mere
conduct) offenses. Likewise, with respect to the offense of facilitating participation
under Article 5/1-b of Law Nr. 7258, the act of facilitating participation from
Türkiye in betting or games of chance operated abroad is sufficient for the
offense to be completed. [11]
5. MENTAL ELEMENTS OF THE
OFFENSE
The offenses set out under
Article 5 of Law Nr. 7258 may only be committed intentionally, since no
negligent form of these offenses is provided for under the Law. It is
sufficient that the perpetrator acts with general criminal intent to operate
betting or games of chance; the legislature does not require any specific
intent.
Nevertheless, Article 5/1-b
expressly provides that the conduct constitutes an offense only where it is
committed “without authorization granted by law”, thereby expressly
incorporating the element of unlawfulness into the statutory definition of the
offense. Where the statutory definition of an offense expressly refers to
unlawfulness, the legislature requires a separate examination of whether the
perpetrator's intent extends to that element of unlawfulness. Accordingly, it
may be argued that the offenses set out under Article 5 of Law Nr. 7258 may be
committed only with direct intent and not with conditional intent (dolus
eventualis). Consequently, with respect to the offense under Article 5/1-b,
the perpetrator's intent must encompass the element of unlawfulness; in other
words, the perpetrator must commit the conduct with the awareness that it is
not based on authorization granted by law.
The conclusion that the
perpetrator must be acting as a content provider is also significant in terms
of the mental elements of the offense. A person who provides content
knowing that it enables access to an illegal betting or game of chance operated
abroad may be considered to have acted with direct intent. By contrast, such
intent cannot ordinarily be established in the case of a mere infrastructure
provider that has no control over the content. Accordingly, the offense under
Article 5/1-b may only be committed with direct intent.
6. ELEMENT OF UNLAWFULNESS
For the offense set out under
Article 5 of Law Nr. 7258 to be committed, the conduct prescribed in the
provision must be carried out “without authorization granted by law.”
Accordingly, betting and games of chance organized by the Presidency of the
Sports Toto Organization, or operated upon authorization granted by the
Presidency of the Sports Toto Organization pursuant to Law Nr. 5738 and the related
applicable regulations are lawful. In legal doctrine, this is regarded as a
ground of justification under Article 24 of the Turkish Penal Code (execution
of a statutory provision). [11]
7. SPECIAL FORMS OF THE OFFENSE
7.1. Attempt
The illegal betting offenses are
offenses of mere conduct, and therefore their completion does not depend on the
occurrence of any particular result. Nevertheless, where the conduct consists
of separable acts of execution that manifest the perpetrator's intent, an
attempt is possible pursuant to Article 35 of the Turkish Penal Code.
Accordingly, depending on the
circumstances of the particular case, acts such as making a foreign betting
website accessible to users in Türkiye, preparing a Turkish-language interface,
integrating a payment channel, setting up a user account signup and login
system, or activating a betting slip module may constitute acts of execution.
The acts of execution must be directly directed at making foreign betting
content accessible for participation from Türkiye. In this context, provided
that acts of execution suitable for the commission of the offense have been
commenced, an attempt may arise where the perpetrator is apprehended or access
is blocked before participation from Türkiye is made possible.
7.2. Complicity
The offense under Article 5/1-b
of Law Nr. 7258 is governed by the general provisions on complicity. In
addition to the content provider as the perpetrator, persons who procure users,
organize payment transactions, advertise the platform or redirect users to it,
provide live support, manage the administrative panel, or process user account
registration and bet slip creation may, depending on the nature and extent of
their contribution, incur criminal liability as co-perpetrators, instigators,
or aiders. However, liability for complicity requires that the participant be
aware of the perpetrator's criminal intent and intentionally direct her/his own
contribution to the commission of the offense.
At this point, the distinction
between the direct perpetrator and the indirect perpetrator becomes important.
The content provider is the person who makes the betting content available for
use in Türkiye and exercises control over the betting service. By contrast, an
accomplice may merely make an ancillary contribution to the operation of that
content. However, Article 5/1-b of Law Nr. 7258 defines acting as an
intermediary in the transfer of funds relating to illegal betting as a separate
offense, while Article 5/1-ç defines encouraging persons to participate in
betting and games of chance as a separate offense. Accordingly, conduct that
would ordinarily be treated as aiding and abetting is separately criminalized
by being defined as an independent offense under the Code.
The most problematic expansive
interpretation on complicity would be to regard every actor in the internet
chain as participating in the offense. Such an interpretation would render the
distinction between content providers, hosting providers, and access providers
meaningless. Accordingly, imposing liability for complicity in the absence of
functional control over the commission of the offense and the requisite
criminal intent would be unlawful.
7.3. Concurrence of Offenses
The Court of Cassation has
consistently held that Article 43 of the Turkish Penal Code, governing chain
offenses, is not applicable to the offense of operating illegal betting. According to the 19th
Criminal Chamber of the Court of Cassation, since society is the victim of the
offense and the persons participating in betting constitute the subject of the
offense, the statutory requirements that the offense be committed against the
same victim on different occasions pursuant to a single criminal decision, or
against multiple victims through a single act, are not satisfied. The relevant
part of the Decision, bearing the Basis number 2020/2391, the Decision number
2021/3711 and dated 29.03.2021, of the 19th Criminal Chamber of the
Court of Cassation, reads as follows;
“Pursuant to Article 43 of the Turkish
Penal Code Nr. 5237, where the same offense is committed more than once against
the same person at different times in execution of a single criminal decision, or
where the same offense is committed against more than one person through a
single act, the sentence imposed on the defendant must be increased pursuant to
the rules governing chain offenses. However, in the present case, since society
is the victim of the offense defined under Article 5/2 of Law Nr. 7258 with
which the defendants are charged, and the persons participating in betting
constitute the subject of the offense, the conditions for the application of
the rules on chain offenses were not satisfied. Accordingly, applying those
rules in determining the sentence and thereby imposing a heavier sentence on
the defendants required the judgment to be quashed (...).” [12]
The Chamber has likewise held
that, even where the defendant accesses illegal betting websites on different
occasions, the rules on chain offenses are not applicable because society is
the direct victim of the offense and, therefore, the same offense cannot be
regarded as having been committed repeatedly against the same victim. The
relevant part of the Decision, bearing the Basis number 2016/8273, the Decision
number 2016/20155 and dated 22.06.2016, of the 19th Criminal Chamber
of the Court of Cassation reads as follows:
“Since, in offenses committed in
violation of Law Nr. 7258, society is the direct victim of the offense, and
since the defendant's act of accessing illegal websites was established on
22.05.2013, the application of Article 43/1 of the Turkish Penal Code without
taking into consideration that the defendant had not, in execution of a single
criminal decision, committed the same offense more than once against the same
victim on different occasions, required the judgment to be quashed (...).”
The same view is also supported
in legal doctrine, where it is argued that, since society is the victim of the
offense, the participation of multiple persons in the betting or game of chance
does not result in a corresponding number of offenses, and that the rules on
chain offenses are therefore inapplicable. [13]
Furthermore, each of the
offenses set out in Article 5 of Law Nr. 7258 is defined as a separate and
independent offense. Accordingly, each of the acts prescribed under Article 5
constitutes a distinct offense and is punishable independently.
As explained in Section 2 of
this article, the offense of providing a place and opportunity for gambling
under Article 228 of the Turkish Penal Code and the offenses set out in Article
5 of Law Nr. 7258 stand in a general provision- special provision relationship.
In this respect, Law Nr. 7258 constitutes the special provision and therefore
takes precedence in its application. Accordingly, the same conduct cannot give
rise to criminal liability under both Article 228 of the Turkish Penal Code and
Article 5 of Law Nr. 7258.
Where the offense is committed
within the framework of the activities of a criminal organization, the
perpetrator incurs criminal liability both for the offense of membership in or
leadership of a criminal organization under Article 220 of the Turkish Penal Code
and for the relevant offense under Law Nr. 7258. Likewise, where the proceeds
of illegal betting are transferred to a terrorist organization, the perpetrator
is liable both under Article 5 of Law Nr. 7258 and for the offense of financing
terrorism under Article 4 of Law Nr. 6415, since the conduct consists of two
distinct acts.
Finally, it should be noted that
where the perpetrator does not in fact operate a betting or game of chance but,
by means of fraudulent conduct, obtains a benefit from others by falsely
representing that such a game is being operated, the conduct constitutes the
offense of fraud under Article 157 et seq. of the Turkish Penal Code rather
than an offense under Law Nr. 7258, since no betting or game of chance is
actually operated.
8. CONCLUSION
The offense of facilitating
participation from Türkiye, by providing access via the internet or by other
means, in betting or games of chance based on sporting competitions operated
abroad, as set out in Article 5/1-b of Law Nr. 7258, is a special offense
introduced to combat illegal betting activities conducted in the digital
environment. The legal interest protected by the offense is not limited to the
protection of public morality and public order; it also extends to safeguarding
the financial interests of the entities authorized under the relevant
legislation to organize such betting and games of chance, as well as the public
institutions and organizations that receive a share of the revenues generated
by those activities.
The offense in question
constitutes a special provision (lex specialis) in relation to the
offense of providing a place and opportunity for gambling under Article 228 of
the Turkish Penal Code. Accordingly, Article 5 of Law Nr. 7258 takes precedence
in cases involving betting and games of chance based on sporting competitions.
Consequently, the same conduct cannot give rise to criminal liability under
both Article 228 of the Turkish Penal Code and Article 5 of Law Nr. 7258.
With respect to the material
elements of the offense, the principal issue concerns the distinction between
Articles 5/1-a and 5/1-b of Law Nr. 7258. In particular, the wording “operated
abroad” is capable of referring either to the betting operation or to the
sporting competition on which the bet is placed and allows for more than one
interpretation. Nevertheless, according to the settled case law of the Court of
Cassation, the distinction should be drawn on the basis of the location of the
betting operation or the website through which access is provided for the
purpose of operating betting. The Court has further emphasized that the
applicable paragraph must be determined beyond doubt and that, for this
purpose, an expert’s examination should be conducted on the seized computer and
any other relevant items in order to establish the location of the website
through which access was provided for the purpose of operating betting.
However, the ambiguity arising from the wording of the provision continues to
give rise to divergent interpretations in practice.
As regards the perpetrator, the
offense is not a specific offense and may, in principle, be committed by any
person. However, in the online environment, liability primarily rests
with content providers. By contrast, hosting providers that merely provide
technical infrastructure and exercise no control over the content should not,
in principle, be held liable as perpetrators unless criminal intent and the
requirements for complicity are established. Accordingly, treating every actor
within the internet ecosystem as a perpetrator without establishing the
requisite criminal intent would be unlawful.
Since the offense is one of mere
conduct, neither actual harm nor any specific result is required for its
completion. The offense is completed once access is provided from Türkiye,
thereby facilitating participation in betting or games of chance operated
abroad. Furthermore, the offense may be committed only intentionally. The
perpetrator's intent must also extend to the element of unlawfulness, meaning
that the perpetrator must knowingly make a functional contribution to enabling
users in Türkiye to participate in illegal betting while being aware that the
system to which access is provided is unauthorized and unlawful.
In conclusion, Article 5/1-b of
Law Nr. 7258 constitutes an important criminal provision aimed at combating
illegal betting activities in light of the cross-border nature of internet
technologies. Nevertheless, it is submitted that, particularly for the purpose
of clarifying the scope of the offense and delineating the boundary between
Articles 5/1-a and 5/1-b, the provision should be redrafted in clearer and more
foreseeable terms. Such an amendment would better serve the principles of legal
certainty and legality in criminal law.
Osman Serhat Demirci, Legal Intern
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