By Dr Rafael Brägger, Attorney, Pachmann Law, Zurich, Switzerland
Gambling has been permitted again in Switzerland 20 years ago. One of the main points of criticism today as then: the danger of gambling addiction.
Gambling does, indeed, act like a drug: it can not only intoxicate and give a feeling of euphoria, but also cause addiction with the desire to increase the dose.
With the shift of games to the Internet and their availability at any time, the problem is accentuated. For this reason, in the case of delinquency, a Court can also order a "gambling withdrawal" – as in the case of alcohol and drug addiction. The law provides for outpatient or even inpatient treatment options if the offender is "addicted to narcotic substances or in some other way" (Art. 60 and Art. 63 of the Criminal Code, StGB).
The Zurich District Court recently had to decide a serious case. A 50-year-old man was employed as the manager of a branch of a catering company. Every evening, he had to deposit the cash income for the day into the employer's business account. Between 23 November 2019 and 8 February 2020, he failed to do so and instead put the money on sports betting on the Internet – a total of Sw. Frs. 189,686.
Surprisingly, no one noticed – until the perpetrator himself confessed everything to the employer. Criminal proceedings ensued, which ended in a conviction of the perpetrator for multiple embezzlement (Art. 138 No. 1 Para. 2 StGB). The Court considered the offender's actions to be classic acquisitive crime, only not for drugs, but for gambling bets. Despite the high amount of the offence and the systematic procedure over several weeks, the Court considered the severity of the offence to be light; in addition to the confession, it also took into account the recklessness with which the employer suffered the damage. According to the Court, the accused had not acted "in a particularly sophisticated manner or with an elaborate plan" when committing the offence but had merely omitted to pay the daily takings into the private plaintiff's bank account. In addition, the perpetrator had paid some of the profits he made from the sports bets into the employer's account.
Although an expert opinion diagnosed the offender with an abnormal habit of pathological gambling and assumed a high risk of recidivism, the Court punished him comparatively mildly with a 12-month suspended prison sentence. At the same time, however, the Court ordered outpatient treatment for his gambling addiction with group and individual therapy.
The case exemplifies how dangerous gambling can be and the dilemma in which the state finds itself in this regard: casinos, lotteries, sports betting are a bubbling source of income for the state, and the revenues benefit charitable purposes, such as the promotion of culture or sports. At the same time, they open up human abysses that destroy livelihoods and break up families, time and again. The elimination of such "collateral damage" is then, again, the responsibility of the general public – a vicious circle!
Dr Rafael Brägger may be contacted by e-mail at ‘
Sports Law & Taxation features: articles; comparative surveys; commentaries on topical sports legal and tax issues and documentation.
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