The Brazilian Bar Association (IAB) approved an opinion declaring Decree-Law No. 9.215/1946 unconstitutional. The law prohibits the operation of casinos and gambling in the country. The decision was made by a majority vote in a plenary session of the entity held this Wednesday (June 3).
The document was prepared by lawyer Paulo Horn, a member of the Constitutional Law Commission of the Brazilian Bar Association (IAB). The opinion establishes that the 1946 Decree-Law was not received by the 1988 Federal Constitution because it is materially incompatible with the current constitutional order, violating principles such as human dignity, private autonomy, free initiative, and economic freedom.
The rapporteur presented the technical arguments during the plenary session. Horn argued that the prohibition established eight decades ago contradicts constitutional principles. The Constitutional Law Committee highlighted that the pre-constitutional measure was enacted in a historical context of transition and of a contingent nature with the objective of prohibiting physical casinos. The lawyer cited free enterprise and economic development as principles violated by the old law, arguing that “the basis of the legislation reveals a normative choice founded on abstract value categories, historically situated and lacking sufficient legal density to legitimize the restriction of fundamental freedoms.”
The rapporteur advocated for a transition to a formalized market. Horn argued that the current context demands rigorous regulation and oversight by the State. In the IAB’s view, the solution lies in adopting a regulatory model focused on transparency, oversight, and user protection, especially given the controversies surrounding online betting and the resulting public debt.
Opinion questions the effectiveness of the prohibitionist model.
The commission also concluded that maintaining the absolute ban on casinos is not supported by modern criminal law theory. “The absolute prohibition of the activity does not identify a specific, concrete, and directly protected legal good that justifies criminal intervention,” the opinion states. According to Horn, the prohibition constitutes a manifestation of “symbolic criminal law,” incompatible with the principle of harm and with the constitutional limits of the state’s punitive power.
Analyzing the practical effects of the policy, the report argues that the measure has failed: “The prohibitionist model has proven, over time, to be structurally ineffective, unable to eliminate the activity, but only to displace it underground and into informal and transnational environments.” The rapporteur added that this scenario results in a loss of state control, a lack of adequate protection for users, and the strengthening of parallel markets.
Another point highlighted by Horn is the recent evolution of Brazilian legislation on betting. The opinion notes that Laws 13.756/18 and 14.790/23 have come to recognize the legality of certain activities based on randomness, subjecting them to state oversight. According to the text, this normative evolution demonstrates “the progressive overcoming of the prohibitionist paradigm and highlights its structural incompatibility with the current constitutional order.”
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