In its judgement of 29 March 2010, the Munich I Regional Court sentenced the defendant to two years' imprisonment for unlawful gambling in combination with fraud in 18,294 separate cases. It suspended the execution of the sentence.
According to the findings of the Regional Court, in the period from December 2008 to February 2009 the defendant organised a raffle on the internet in which the main prize was to be a semi-detached house belonging to him. In order to participate in the raffle, the participants had to pay an entry fee of €19 and answer several quiz questions correctly. On his website, the defendant had assured, among other things, that the raffle was a "permissible game of skill" that was designed according to the "legal requirements". In fact, he had been advised by the competent authorities that a final legal examination of the game he was planning was not yet possible due to missing documents, but that the presumption was that it was likely to be an unauthorised game of chance. This essentially corresponded to legal advice that the accused had previously also received from his lawyers, according to which the legal situation was assessed as "unclear" and further action was only recommended in agreement with the authorities. The accused, who had to expect the authorities to intervene because of the correspondence, nevertheless started gambling. The prohibition order was issued at the end of January 2009. The defendant soon withdrew the appeals he had initially lodged against this and stopped the further operation of the game. Until the game was discontinued, 18,294 persons participated in the game, many of them several times. In total, the accused obtained 404,833 €, of which he only paid back a small amount (4,833 €) to some of the participants, some of whom had threatened him with the involvement of a lawyer. He used most of the money for his own purposes.
With the consent of the Attorney General, the Senate limited the prosecution to the charge of fraud (§ 154a Code of Criminal Procedure), as the findings of the Regional Court were not sufficient to support the conviction for unlawful gambling (§ 287 Criminal Code). On the defendant's appeal against the Regional Court's verdict, the conviction had to be changed according to the restriction. In all other respects, the defendant's appeal was unsuccessful. The accused's conviction for fraud in 18,294 separate cases is thus final.
Decision of the Federal Supreme Court of 15 March 2011 - 1 StR 529/10;
Lower court:
LG Munich I, Judgement of 29 March 2010 - 5 KLs 382 Js 35199/09
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
