Changes in Regulations Regarding Fiscal Crimes and Offenses Related to the Organization of Gambling

On 3 March 2022, a draft Act amending the Fiscal Penal Code (k.k.s.) was published. The proposed solutions aim to reduce the grey market. Changes are planned regarding, among others, the institution of voluntary disclosure (czynny żal), limitation periods, and the tightening of penalties for specific fiscal crimes and offenses. This article focuses on amendments directly related to crimes and offenses concerning the organization of gambling and the related forfeiture, while noting that these provisions should be interpreted in conjunction with other modified regulations contained in the Fiscal Penal Code. Under the current wording of Article 30 § 5 k.k.s., forfeiture is ordered for documents or devices used for lotteries, slot machines, or mutual betting, as well as the funds contained therein and winnings assigned to the player based on such documents, including funds obtained from selling shares in the game or placed stakes. The draft justification explains that the amendment of § 5 Article 30 arises from the need to adapt its wording to contemporary gambling realities, particularly the use of electronic devices. In many cases, it is not possible to order the forfeiture of documents on which players’ winnings are based, especially for online games where winnings are recorded electronically on devices such as servers often located outside Poland. In fiscal criminal proceedings, the fact of obtaining winnings can be proven in various ways. Therefore, a sufficiently general and universal wording is proposed to cover all cases where winnings are proven using any type of evidence collected during proceedings. The proposed change also provides greater clarity and precision, aiding understanding by legal addressees and players, who are the holders of funds subject to forfeiture. The scope of documents subject to seizure will be limited to those used in organizing or conducting gambling, particularly contracts between entities involved in illegal gambling, financial settlement documents not constituting accounting books, or receipts for payouts in illegal gambling. Regarding devices and gaming machines, currently, when forfeiture is ordered, attempts are first made to sell them to legally operating entities. Only if this fails are the devices destroyed. In practice, such devices are often damaged or fail to meet legal standards, and legal entities are not interested. The amendment provides that the execution of a court’s forfeiture order will be carried out through destruction. Article 107d, concerning illegal possession of gaming machines, will be revised. Instead of punishing an entity possessing a machine in violation of concession conditions or without required official inspection, the law will penalize possession of gaming machines “in violation of the Act.” The aim is to remove interpretational doubts about whether the provision applies only to legal entities or also to illegal operators without a license. A new fiscal offense will be introduced: providing property or means for illegal gambling. Individuals granting property or means, particularly renting or lending real estate, for conducting gambling without the required license or permit, will face a fine of up to 360 daily rates. A lesser offense is provided, punishable by a fine ranging from 1/10 to twenty times the minimum wage. Currently, such individuals may be prosecuted for aiding illegal gambling. However, the general public is often unaware that such acts are punishable, and proving awareness of illegality can be difficult. The new provision clarifies liability and increases public legal awareness. Mitigating circumstances are also recognized, e.g., one-time or gratuitous use of property. Article 108 k.k.s., concerning illegal lotteries, will be amended to include minor offenses. Surplus from lotteries, promotional games, or similar events under a defined small value (e.g., up to 200 times minimum wage) may be treated as a minor offense, punishable by a fine rather than severe penalties. The existing penalty for socially beneficial surplus remains unchanged. Article 109 k.k.s., regarding participation in illegal gambling, will also include a minor offense clause, recognizing that not every individual violation should constitute a serious fiscal crime. A new type of fiscal crime, Article 110c k.k.s., will be introduced: obstructing gambling supervision. Individuals who prevent or hinder authorized officers from conducting inspections related to gambling, including experimentation, testing, or accessing gaming devices, or who fail to provide required documents or explanations, will face fines of up to 720 daily rates. Minor offenses may be penalized by fines as lesser infractions. In practice, inspections of illegal gambling are often obstructed – officers may be denied entry, or devices disconnected to prevent testing. Some behaviors may not constitute serious crimes, where a minor penalty suffices. Despite the introduction of new fiscal offenses, the provisions are generally softened by minor offense regulations. This approach is justified, as not every act should immediately constitute a fiscal crime. The amendments aim to clarify legal liability, increase awareness, and improve enforcement against illegal gambling while allowing for proportionate penalties.