Historic success: DR. SARAFI statement leads to the termination of all criminal proceedings against foreign gaming operators in Germany

In an unprecedented move, the Joint Gaming Authority of the Länder (GGL) in Germany has initiated hundreds of criminal proceedings against foreign online gambling providers. These providers, which have a foreign gaming license, were targeted because their online services are — naturally — accessible worldwide and therefore also in Germany. These actions by GGL caused considerable unrest in the industry and also led to the investigation of private individuals who were suddenly confronted with the consequences of criminal proceedings when entering and leaving various airports.

Dr. SARAFI has submitted a comprehensive statement to the competent public prosecutor's office, drawing attention to international issues of criminal application law and stressing that the legal opinion of the Joint Gaming Authority of the Länder (GGL) is not sustainable and that German criminal law does not apply to such foreign matters:

“With a server operated abroad, such an “external world change” would not occur in Germany, but at most where the server was set up and the data was fed in. This is ultimately related to how the Internet works. Put simply, when a website is entered in the browser window, regardless of where it is used from, a computer connects to the server that hosts the website via an Internet service provider (ISP). If, for example, the website www.google.de is accessed, the user's computer connects to a server on which Google's content is stored. This content is already available on the server and is not created just when a user, e.g. in Germany, accesses the page. Instead, what already exists on the Internet is displayed on the user's computer. The external world change finally takes place when the respective operator of the website being accessed publishes it on the World Wide Web. All data (bits and bytes) has already been finally uploaded to the underlying server.

It is therefore not convincing to assume that the external world change would come about as a result of players being able to participate in Germany. Because the opportunity to participate is only the result of a change in the external world that has already occurred long ago; in this respect, it is only a side effect.

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With the 60th Act amending the Criminal Code, the legislator has made comprehensive changes to Section 5 StGB in response to various decisions of the Federal Court of Justice on abstract endangered offenses. For example, according to the legislative materials, the facts of Sections 86, 86a and 130 StGB were integrated into the catalogue of Section 5 StGB in response to the case law of the Federal Court of Justice in order to establish the applicability of German criminal law to corresponding acts abroad. Section 284 StGB, however, was explicitly not included in the amended catalogue. This is also not an editorial mistake. The introduction of Section 284 (4) StGB was based on a suggestion from the Federal Council and should take account of the fact that, as a result of the expansion of telecommunications options, the actual organizer within the meaning of Section 284 (1) StGB was often no longer active in Germany and could therefore not be prosecuted under criminal law. The legislator is well aware that foreign providers of online gambling cannot be punished. Accordingly, he did not overlook Sections 284 et seq. StGB in the legislative process relating to Section 5 StGB, which also emerges from corresponding commentary literature. It is also unlikely to be tenable under international law to export German criminal law to a worldwide criminal justice system and apply it to all foreign providers who operate in Germany via the Internet. This would mean significant extraterritoriality and is likely to be incompatible with principles of international law.

Ultimately, it is currently irrelevant whether the inclusion of Sections 284 et seq. StGB in Section 5 StGB would be admissible. Rather, the fact that Sections 284 et seq. StGB have not currently been included in Section 5 StGB is decisive. These legislative considerations underline the need to apply German criminal law to acts abroad only within the framework of the principle of territoriality or on the basis of an explicit order in Section 5 StGB.

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This argument was not only heard, but was also adopted literally by the public prosecutor's office in its decision:

On January 15, 2024, the public prosecutor discontinued all criminal proceedings against hundreds of foreign providers and against streamers in accordance with Section 170 (2) StPO — without payment of monetary requirements.

This success underlines the importance of a scientific and dogmatic approach, even in proceedings influenced by legal policy. It is a sign that even under pressure from powerful authorities such as the GGL, the principles of the rule of law and the need for a fair legal framework remain in place.

This case serves as a reminder and reminder of the importance of the rule of law and the role of the judiciary as a guardian of compliance with these principles. It is proof that factual and well-founded legal arguments can make the difference.