POLAND

Poland – Is leasing the premises a crime of illegal gambling?

And since today’s so-called Constitutional Tribunal is to deal with a complaint regarding the taxation of gambling (SK 3/14), it is time for a tricky question: whether renting space in the premises where the lessee puts a one-armed bandit, can be classified as a gambling offense? And whether discrepancies in case-law may result in acquittal of the perpetrator – on the basis of regulations on acting under the influence of error?

Judgment of the Supreme Court of July 4th 2018 (III KK 433/17)
Undeclared behavior with the assumption of interpretative doubts that arise on the basis of provisions concerning them, will protect the perpetrator from criminal liability due to the possibility of invoking the action under error conditions, certainly could not be classified as an action under error conditions as to criminality.

The case concerned men accused of arranging slot machine games without a permit and in a place not intended for that purpose (art.107, par. 1, kks – penal and fiscal code) – including the president of the company who, as a lessee, concluded a contract for the use of space in the premises where the machines were placed.

The accused were legally acquitted of charges – because, according to the court, the defendants were not aware of the unlawfulness of the actions, the provisions are unclear, their interpretation variable (also regarding the need to notify the Gambling Act in the European Commission) – everything indicates that the accused acted under the influence of error.

    Art. 107 par. 1 kks
Whoever, contrary to the provisions of the Act or the concession or permit conditions, arranges or conducts gambling, is subject to a fine of up to 720 daily rates or imprisonment of up to 3 years, or both.

The Supreme Court allowed for cassation (brought by the prosecutor and the Head of the Tax-Fiscal Office): the grounds of the appealed judgment do not indicate under what influence the defendants were to act (as to the signs of a prohibited act, error
as to the circumstances that exclude the unlawfulness of an act or the error in criminality? General considerations regarding the regulations resulting from art. 10 kks, nor the unclear statement about the transitional period resulting from art. 4 of amendment from June 12th 2015 of the gambling act will not be enough.

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