Problems of Qualifying and Detecting Illegal Organization and

Conduction of Gambling

Vitaly Alekseevich Kanubrikov

, Alexander Alexandrovich Likholetov

, Tatyana Vasilyevna

Ialovenko

and Yekaterina Petrovna Yevstifeyeva

Volgograd Academy of the Ministry of Interior of Russia, 130 Istoricheskaya Street, the Volgograd region, Russia

Keywords: criminal law, operational search activities, qualification of crimes, gambling, gambling business, detecting

organization of gambling, conduction of gambling.

Abstract: This article studies relevant problems of qualifying organization and conduction of gambling that cause

problems in their detection. Special attention is given to developing operational search activities as a complex

legal mechanism. The research conclusion underlines the necessity for a systemic approach that could resolve

discrepancies in different scientific disciplines; stop promulgation of specialized academic interest and

inability to compromise; overcome biased thinking. The study aims to provide an all-encompassing analysis

of qualifying and detecting illegal organization and conduction of gambling activities. In order to do this, the

authors have outlined the following tasks: to provide the perspective of national legal theorist sand foreign

specialists on qualifying and detecting illegal organization and conduction of gambling activities in modern

society. The comparative legal analysis, combined with general scientific methods, enabled to study examples

of the present-day court practice concerning qualifying and detecting illegal organization and conduction of

gambling.

1 INTRODUCTION

The desire to take a chance and gamble can be found

in any culture at any time period. However, gambling

is discouraged in most countries, as it harms interests

of individuals and the government. Instead of creating

new public goods, gamblers strive to redistribute

already existing resources for personal gains, which

could eventually lead to nationwide economic

stagnation or recession. This necessitates imposing a

complete ban or strict limitations on organizing and

conducting gambling.

State regulation of gambling in Russia has a long

history. Gambling is a relatively new type of business

in this country, yet it can be described as one of the

most latent and criminalized service industries. This

is caused primarily by its significant turnover of cash

funds and difficulty to establish proper industry-wide

supervision (Smagorinsky, Yevstifeyeva, 2018). In

the Russian Federation, there is currently a negative

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situation concerning gambling business, partially due

to crime qualification problems that consequently

hinder detection of gambling crimes by law

enforcement operatives.

It should be noted that modern legal science pays

much attention to ideas of national theorists (Piven,

2018; Zatsepin A.M., Zatsepin M.N., Filippova O.V.,

2018; Kovalenko, 2019; Sukhanov A.V., Genzyuk

E.E., Kulikova A.A., Barashyan L.R., 2019;) and

foreign specialists (Mcmullan John L., Perrier David

C., 2003; Gainsbury S.M., Angus D.J., Blaszczynski

A. 2019; Estevez A., Jauregui P., Lopez-Gonzalez H.,

2019) on problems of qualifying and detecting illegal

organization and conduction of gambling.

This research aims to analyze problems of

qualifying and detecting illegal organization and

conduction of gambling.

Kanubrikov, V., Likholetov, A., Ialovenko, T. and Yevstifeyeva, Y.

Problems of Qualifying and Detecting Illegal Organization and Conduction of Gambling.

DOI: 10.5220/0010633200003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

183-188

ISBN: 978-989-758-532-6; ISSN: 2184-9854

183

2 MANUSCRIPT PREPARATION

This study has examined scientific literature on

qualifying and detecting illegal organization and

conduction of gambling, including works of both

national and foreign legal theorists.

Thus, this analysis of problems of qualifying and

detecting illegal organization and conduction of

gambling activities is based on scientific and legal

practice materials.

3 RESULTS AND DISCUSSION

Legal regulation of gambling is complicated by the

wide variety of activities that can be categorized as

such. Article 171.2 of Russian Criminal Code

provides a blanket norm, with references to Federal

Law No. 244-FZ of December 12. 2006, “On state

regulation of activities associated with the

organization of and carrying out gambling and on

amending individual legislative acts of the Russian

Federation”. The legislators gave an overly abstract

definition, while the said federal law regulating

respective public relation does not provide a list of

such activities. As a result, it is difficult to categorize

specific games as gambling. Current scientific

literature provides several definitions of gambling

games. Criminal law theory also has no unified

approach to defining this notion.

For instance, V.D. Legotkin describes the

gambling game as a productive activity related to

redistribution of material wealth between its

participants, who are engaged in this activity due to

unfair random-based redistribution, mercenary

motives and absence of mechanisms controlling

players’ emotional condition (Legotkin, 1991). The

mentioning of mercenary motives that indicate illegal

obtaining of material gains leads to the conclusion

that the author studies the notion of gambling games

only in the context of criminal activities.

O.A. Ivanova believes a gambling game is a paid

game, as agreed on by its participant and (or)

organizers that is performed for the purpose of

winning in the way established by an agreement

between participants and (or) organizers (Ivanova,

2016).

The “payment” factor of gambling games

distinguished by the author (Ivanova, 2016) is worthy

of interest, yet it can hardly become the reason for

excluding “randomness factor” from the definition.

Besides, this definition seems applicable to situations,

in which the winning depends on participants’

strength, skills, etc. (for example, sports games

involving money wagers).

We consider it impossible to fully agree with the

said definition of gambling games due to following

arguments:

1) indication of a licensed organizer limits

application of the definition for cases of organizing

and conducting gambling on special gambling zones

on the basis of permit (i.e., not on the basis of license);

2) it is unclear why the author considers that an

attribute of a gambling game is randomness of its

outcome that can be influenced by the participants.

The whole point of such entertainment is the

uncertainty of its result. Otherwise, there is no reason

to organize a game, outcome of which (e.g., winning)

can be directly influenced by the player;

3) it seems excessive to specify the fact that

agreement on winning is aimed at one party getting

financial gains at the expense of another party. The

notion of winning, judging by its etymology (getting

something through playing or drawing prizes;

something that has been gained in such manner),

involves obtaining material gains.

Having stated that, a gambling game can be

understood as an activity aimed at fulfilling on

specified terms an agreement between parties on

random-based winning.

Criminal law theory does not have significantly

differing notions of organizing gambling activities

(Likholetov 2017).

According to R.A. Sevostyanov and E.V.

Prosvirin, this notion involves any activities related to

creating conditions for gambling: installing slot

machines, equipping casino halls, hiring personnel

for conducting games etc. (Sevostyanov, Prosvirin,

2013).

O.P. Naumenko defines organization of gambling

as any activity aimed at creating conditions for

opening a gambling facility or ensuring its further

functioning (Naumenko, 2016). However, it is

unclear why the author decided to make a distinction

in her definition between facilitating opening a

facility and its functioning, as the latter is hardly

possible without the former.

I.N. Mosechkin offers the definition of illegal

gambling organization as processes of creating and

financing conditions for making and fulfilling

agreements on risk-based winning, as well as

management of such conditions (Mosechkin, 2016).

However, creation of said conditions most probably

incudes their financing as well.

Thus, organization of gambling should be

understood as a complex of activities, which final

result is creating conditions for making risk-based

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agreements on winning with an undetermined number

of participants on specified rules. They can include

obtaining legal permit for this type of activities,

obtaining property and equipment for gambling,

hiring personnel etc.

We can conclude that conduction of gambling

involves performing activities on making and

fulfilling risk-based agreements on winning between

an undetermined number of participants (or at least

one participant) on specified rules. Such activities

should be understood as obtaining monetary

resources for participation, provision of gambling

equipment, payment of winnings, etc.

As of now, criminal law science lacks proper

analysis on what should be considered the final

moments of gambling organization and conduction.

The Supreme Court has not provided any official

clarification of this matter. However, legal theory has

an examination of similar attributes for crimes

stipulated by Article 232 of Russian Criminal Code -

Organization or Maintenance of Dens for Consuming

Narcotic or Psychotropic Substances.

Given the specifics of gambling activities

mentioned above, a more accurate point of view

would distinguish the final moment of a criminal

action as the moment when a person completes

activities aimed at making risk-based agreements

with an undetermined number of participants on

specified rules

Such activities should include a set of minimally

required but sufficient actions that ensure conduction

of gambling. The final moment of illegally organizing

gambling activities as a criminal action must be

estimated basing on actual circumstances of a

committed crime, with ability of a gambling facility

to conduct games being the decisive criterion.

The fact of an illegal gambling facility beginning

to function as such is irrelevant for qualifying its

activities as a finished criminal action.

Given this, illegal organization of gambling

should be considered finished the moment a person

fulfills minimally required activities that ensure

making risk-based agreements on winning with an

undetermined number of participants on specified

rules.

Distinguishing the final moment of a criminal

action stipulated by Article 171.2 of Russian Criminal

Code – conduction of gambling activities – may face

certain difficulties caused by the nature of such

games.

Conduction of gambling activities should be

considered finalized the moment parties fulfill a

minimal set of conditions of their risk-based

agreement on winning.

Given the proposed definition of a gambling game

as an “activity aimed at fulfilling on specified terms

an agreement between parties…”, we can conclude

that such an agreement cannot be fulfilled

unilaterally, i.e., the organizer’s provision of

opportunity for participation is insufficient. This fact

must incentivize the other party to fulfill activities

they have agreed on.

The organizer’s activities on conducting gambling

demonstrate attributes of a public offer, i.e., the

opportunity to participate is provided to an unlimited

number of people and only those who agree on

specified terms and fulfill them can use said

opportunity.

It is assumed that conduction of gambling

activities will be finalized when two conditions are

simultaneously met: an organizer provides

opportunities for participation (e.g., access to

gambling equipment) and a participant bets money as

a wager. The former condition is deemed secondary –

the decisive factor is the participant’s acceptance to

participate demonstrated by giving money as a wager.

If the money has been wagered, the inability to

participate in the game that does not depend on the

organizer (power outage, slot machines’ software

malfunction etc.) or was caused by force majeure

circumstances should not be considered a reason for

qualifying the crime stipulated by Article 171.2 of

Russian Criminal Code as unfinished.

In cases when the organizer intentionally does not

provide access to the game after the wager has been

made, it is possible, given other circumstances, to

consider finding attributes of a fraud in the

organizer’s actions.

Thus, conduction of gambling should be

considered finished from the moment the organizer

receives money from the participant as a wager

granting opportunity to participate in the game

according to a risk-based agreement on winning

under specified rules.

Besides, the organizer of gambling is understood

as the “legal entity performing activities on

organizing and conducting gambling”. However,

Article 19 of Russian Criminal Code stipulates that

only an individual can be considered the subject of a

crime. Such ambiguity in understanding and

clarification of the legal disposition causes various

issues in legal practice. In fact, construction of the

notion of crime in this manner, the legislators

provision that a legal entity can be the subject of a

crime. Yet in practice responsibility for this entity’s

actions is born by an individual found guilty, i.e.,

actions of an organization are associated with actions

of a particular person who demonstrates attributes of

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the subject of a crime. If a crime is committed not by

the direct leader of an organization but by a

subordinate employee, the owner in most cases bears

responsibility as an accomplice, as provisioned by

respective part of Article 33 of Russian Criminal

Code.

Current issues of qualifying organization and

condition of gambling cause problems in detecting

and countering this type of crime. Because of this,

further development of operational search activities

as a complex mechanism greatly depends on a

systemic approach that would resolve discrepancies

in different scientific disciplines; stop promulgation

of specialized academic interest and inability to

compromise; overcome biased thinking. Regulatory

acts that are now in effect specify law enforcement

subjects tasked with crime detection and prevention.

According to Article 151 of Russian Criminal

Procedure Code, an exclusive competence to

investigate organization and conduction of illegal

gambling activities is given to the Investigation

Committee of the Russian Federation. Meanwhile,

detection of illegal gambling and other economic and

corruption crimes through operational search

activities is performed by economic security and

corruption prevention departments authorized to

engage the whole range of such law enforcement

activities.

Nowadays, apart from video surveillance systems,

passwords and signals for regular visitors, informing

about the gambling venue via cellphone and other

methods, organizers of illegal gambling more often

use residential premises, creating additional

difficulties in detecting and protocolling criminal

activities.

The following factors must be taken into account

while detecting this type of crime:

- large number of persons capable of organizing

and conducting illegal gambling and their

characteristics;

- clandestine nature of illegal gambling facilities

organized outside gambling zones;

- subjects of these crimes are often as educated

and skilled as investigators and operatives.

Detection of illegal gambling organization and

conduction has a specific structure. In general, this

large and multi-aspect work can be divided into the

following stages:

1) detecting attributes of crimes provisioned by

Article 171.2 of Russian Criminal Code and the

people involved;

2) preliminary verification of primary

information;

3) making a decision basing on primary

information.

In our opinion, the following main objects and

directions of operational search can be applied to this

category of crime:

- illegal gambling facilities (clandestine gambling

rooms and casinos) using slot machines, poker tables

and other equipment;

- gambling facilities operating under the guise of

lotteries, including those using modified slot

machines;

- internet cafes and computer clubs using online

casino technologies for gaming, including special

programs with Internet access;

- bookmaking agencies using modified slot

machines under the guise of legal betting activities;

- persons who can be prone to organizing and

conducting illegal gambling due to their qualification,

skills and social conditions;

- persons who can participate in preparing and

committing such crimes due to their criminal

background (prior convictions for similar crimes);

professional skills of gambling facilities’ employees;

connections to criminals (organizers of illegal

gambling);

- persons engaged into conduction of illegal

gambling activities.

While examining sources of operationally

relevant information, special attention should be

given to obtaining information from other agencies

and law enforcement departments. Personnel of

different agencies and department, apart from

information relevant for their work, can obtain data

directly or indirectly indicating on illegal gambling

activities. However, the practice shows that such

information is often underestimated in terms of its

importance for other agencies or even colleagues

from the same law enforcement department. As a

result, additional data on objects of interest do not

reach the addressee. This can be explained by the fact

that workers of other agencies tend not to receive

information irrelevant for their activities and even if

they receive this information, in many cases they do

not check it or submit to respective agencies.

Effective detection of illegal gambling also

depends on tactical planning, cooperation between

economic security and corruption prevention

departments and state authorities supervising

organization and conduction of gambling. This makes

it possible to use the obtained data for opening a

criminal case and getting investigation evidence on

illegal organization and conduction of gambling.

The most problematic part of preliminary

verification involves examining seized equipment

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ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

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and classifying it as gambling ones. There is no

official technical regulation that can be approved only

by the Government of the Russian Federation,

according to which gambling equipment can be

classified and distinguished from lottery and other

devices.

4 CONCLUSIONS

Improving legal regulation of gambling is partially

complicated by necessity to quickly adapt to

technological progress. Since the Internet appeared

25 years ago, gambling has become more diverse and

available and social activity related to it has

increased. Consequently, lawyers, legal theorists and

practitioners have to deal not only with the issue of

making clear legal provisions to address qualification

issues but also of predicting development tendencies

in the gambling industry and ensuring the law

corresponds to the present-day situation, as

organizers of gambling activities are always striving

to benefit from discrepancies and uncertainties of

current legislation.

Considering the facts mentioned above, it seems

necessary to develop different models for resolving

these challenges. For better understanding the ways

gambling industry functions and develops, it is worth

studying foreign legislative practices, as they can help

to reveal the most possible qualification-related

problems.

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