The ever-increasing progress of the world of technology and the Internet, along with the many benefits and positive effects it has in human life, has also caused disadvantages and harms. Many of these disadvantages and problems have appeared in the criminal laws of countries in the form of computer crimes. One of the behaviors that is becoming more widespread in society day by day due to the virtual space and causes many problems in the economy and monetary and financial policies of countries, is gambling and computer betting.
In many countries, online gambling and betting have been criminalized due to their harmful effects, and specific gambling penalties have been defined for them. Today, gambling or betting does not satisfy feelings such as the desire to win or personal pleasures. This phenomenon has turned into a type of industry that has huge profits at its heart and affects the public order or the economy of a country.
In the country of Iran, the Islamic Penal Code and the Computer Crimes Law do not define a crime under the title of gambling and computer betting. Gambling has been criminalized in a general and absolute way and with titles such as “gambling”, “buying, selling and maintaining, producing and distributing, importing gambling tools and operating and serving in gambling houses”.
In this article, we are trying to first define gambling and betting and then answer the question whether the existing legal texts are the answer to all gambling and betting situations, including internet gambling and betting, or whether there is a legal gap in this field. ?
What is gambling?
The definition of gambling in terminology books is any game in which the winner takes something (compensation) from the loser, by any means. For gambling with the same meaning, in Islam, the order of sanctity has been issued; In such a way that this behavior is considered one of the most severe prohibitions.
Gambling is mentioned in the Islamic Penal Code. The twenty-eighth chapter of the Islamic Penal Code under the title “Advocating the use of alcoholic beverages, gambling and debauchery” and specifically articles 705 to 711 of the said chapter, deal with the issue of gambling.
Gambling and computer betting are not defined in the Islamic Penal Code, but Article 705 of this law considers gambling with any means, whether it is with special gambling equipment or not, as a betting crime, and for the perpetrator, the punishment for gambling is one to six months. considered imprisonment or up to 74 lashes.
Gambling in the Islamic Penal Code
It seems that the meaning of gambling in the Islamic Penal Code is any of the following two situations:
1- Gambling means a game with special gambling devices such as pasor, backgammon, etc., in which it is stipulated that the winner takes something from the loser.
2- Gambling means betting that the winner will receive something from the loser, regardless of whether gambling equipment is used in the game or not.
The meaning of betting is a contract between two or more people on the basis that if anyone is correct about the occurrence of an event or the realization of a result, he can ask others for an amount of money or to give property or to do something. According to this definition, in betting, the use of tools and special devices is not a condition; For example, if the fans of two football teams announce their guesses about the outcome of a certain game and bet that whoever predicts the outcome correctly, the loser will own something of economic value, a type of betting occurs. give
Betting in the Islamic Penal Code
There is no crime under the title of betting in the Islamic Penal Code. The opinion of some jurists is that gambling and betting are equivalent to each other in the Islamic Penal Code. Another group of jurists believe that betting is not equal to gambling, but is considered only a part of gambling. In other words, they believe in the general and absolute relationship between these two concepts.
This group argues that in Article 705, if the game is played with special gambling devices, the crime of gambling is realized in the specific sense of the word. If there are no special gambling devices in the game and the only bet is to win something, this action is an example of betting, which is considered a special type of gambling (in its general sense). For determining punishment, there is no practical difference between these two views. Any behavior that meets the conditions set forth in Article 705 is subject to the gambling penalties set forth in the article, regardless of what we call that behavior exactly.
What is computer gambling and betting?
Now it’s time to answer the question whether the existing laws are sufficient to resolve the ambiguities related to all the cases of committing the aforementioned behaviors, including their commission in the computer and virtual space, or are there any gaps in this field?
In the past years, there were two procedures in this field, which are as follows:
The first procedure; Absolute illegitimacy of gambling
One procedure was that gambling and betting is absolutely and without restrictions, illegal and a betting crime. It doesn’t matter if the said behavior takes place in a real and traditional space or if it happens in a virtual space. With this description, to determine the punishment for gambling and online betting, they also went to Article 705 of the Penal Code. In this case, virtual betting, like traditional betting, was included in the gambling subcategory.
the second procedure; The uniqueness of computer gambling
On the other hand, there was another group who, citing some reasons, argued that the sentence stipulated in Article 705 cannot be extended to computer and virtual gambling and betting, and it is necessary for the legislator to include a separate article in the computer crimes law for this type of behavior. to consider
The argument of this group was that according to the principle of legality of crime and punishment (according to this principle, any behavior that is supposed to be considered a crime should be clearly mentioned in the Islamic Penal Code), the principle of narrow interpretation of criminal laws (according to this The principle, since the penal law, in addition to financial matters, is directly related to the life, honor, dignity, and freedom of individuals. In cases of ambiguity or brevity in the text of the law, the interpretation of the article should not be such that it goes beyond the scope intended by the legislator), the rule of obscenity Aqli Aqab Bela Bayan (According to this rule, if we make someone gamble based on the current act or omission of punishments, without having previously prohibited such behavior or omission, this work is intellectually indecent and ugly.), generalization The ruling of traditional gambling in the new form of gambling and betting (which is online) is not correct.
This group believes that if the punishment related to the commission of computer crimes is to be deduced from the Islamic penal laws, there was no need for the legislator to formulate the law of computer crimes and re-consider behaviors that were crimes before and In the Islamic Penal Code, the traditional type of committing them was criminalized.
The justification of the second procedure from a legal point of view
The words used in articles 705 to 711 (gambling devices, opening a gambling house, serving in a gambling house) as well as the lack of objectivity of internet gambling at the time of the approval of the punishment section (year 1375), make it clear that the legislator only considers traditional and physical forms. It has criminalized gambling and the sentence of these substances cannot be extended to the mode of committing them on the virtual platform.
In this regard, some courts and judges, citing reasons similar to the above, considered gambling or virtual betting outside the title of gambling in cases where individuals tried to set up gambling sites or sports prediction sites, and the ruling In the innocence of the owners and managers of such punishments, site users used to make bets. Even by referring to the narrow interpretation of the criminal laws, the large and illegal incomes of these people are removed from the confiscation.
What is the penalty for betting online?
It was because of this difference and difference in procedure that in July 2018, the Prosecutor (General of the country) at the time (Hujjatul Islamwal Muslimin Montazeri) issued a directive to create a unified procedure regarding the punishment of betting and gambling site users to the prosecutors all over the country and briefly mentioned:
Committing gambling and betting in any way, such as using betting websites, is a betting crime and the punishment prescribed in the Islamic Penal Code will be applied to them. He also added the point that betting on the results of competitions, even if it is not considered gambling, is still a crime, and a clear example of the crime of acquiring property through illegal means is Article 2 of the Law on Punishment of Embezzlement, Bribery, and Fraud.
In other words, in the first step, the Attorney General decided that emerging examples in the field of betting and gambling should be interpreted as much as possible in such a way that they fit within the scope of Article 705 of the Islamic Penal Code. Then, in the next step, he tried to provide a solution to prevent those bets from remaining undecided that cannot be adapted to the general title of gambling; In this way, if the bet in question cannot be concluded due to the lack of the conditions stipulated in Article 705, in a way that is within the scope of the examples of this article, in case of exchange of money or property resulting from betting, the said behavior is an example of the crime of acquiring property through illegal means. be taken into consideration and the provisions of Article 2 of the Law on Intensification of Punishment for the perpetrators of embezzlement, bribery, and fraud should be applied.
Although the said circular was an effective step towards creating a unified approach in the field of gambling and betting sites, the need to revise the laws in this field cannot be ignored; Because the traditional laws do not seem sufficient in all the challenges ahead and the need to adopt a proportional legal policy in this regard seems necessary.
The necessity of monitoring the importance of gambling and subsidized bets
The development of computer gambling and betting is due to insufficient supervision and legal loopholes. Unfortunately, today many are involved in the consequences of this issue. It seems The increase of online betting as well as the establishment of virtual gambling houses, it seems necessary to examine the nature of such behaviors from the point of view of computer criminal law. Also, appropriate regulations should be established for this space that creates the necessary deterrence. The challenges related to this emerging phenomenon cannot be answered just by issuing a circular. In addition, all behaviors in this area cannot be included in one of the mentioned criminal titles (gambling or acquiring wealth through illegal means).
The result of such criminalization of gambling has caused it to be very limited in the traditional and real atmosphere, due to the clarity of the text of the law, it does not take a social form and becomes private in circles;
Conclusion:
In this article, the definition of gambling and betting, their punishment and the commission of these behaviors in cyber space were mentioned very briefly. However, it is important to mention that the punishment for all people related to this field is not the same. For example, the punishment for people who engage in computer gambling and betting is different from the punishment for operators and operators of the relevant betting site users. Therefore, filing a complaint in these fields or drafting a defense bill against such accusations has subtleties and complications.
In addition, the conditions of each case in this field are different from other cases. As a result, it is not possible to imagine a single procedure and ruling for all cases. Consulting with a lawyer specialized in the field of computer crimes and familiar with the procedure of complaints related to computer betting will help you to a great extent to win such cases and not face a serious challenge.
Dadista Law Firm is proud to announce that it has lawyers and legal advisors who are competent and proficient in the field of computer crimes. This institution is ready to provide all kinds of legal advices to esteemed contacts.