Summary:
the offer to enter into a betting agreement is generally implied the statement indicates that the referenced contract is not intentionally manipulated to their advantage (following BGHSt 29, 165).
Issue:
Defendant A had suffered until the spring of 2004 at the Deutsche Klassenloterie (DKL) under the name "Oddset" powered sports betting losses amounting to € 400,000. At that time, he decided to increase his odds of winning decisively by influencing the game by means of bribery of players and referees in order to recover the amount lost in Oddset. Of course, he considered this manipulation of each betting secret, if only to be not excluded from this game participation. In accordance with his plan, there were ten separate acts, taking bets at fixed Odds were completed. The defendants A win here, partly with the help of his brothers, the angekl. Referee H and M and the separately pursued football player K and other football players against payment or the promise of substantial funds (3000-50000 €) means that this exit of football matches to incorrect referee decisions or unsportsmanlike game reserve manipulate. were football matches in the Regionalliga, in the Second Bundesliga and the DFB Cup. Upon payment of the wager gave the staff of the completed W of A lottery tickets routine in the data processing, and handed him the Wetscheine. A winning four out of ten amounts of money and bets to between 300,000 € and € 870,000. Caused financial loss was € Bets all ten at about 2 million.
As A criminally prosecute?
decision:
1) A The accused has made in ten cases of fraud to the detriment of the relevant betting company guilty.
2) A has the betting levy on tickets explains implied, not a manipulation of the betting object to be involved, and has thereby deceived the employees of the receiving office, so that this error caused the respective betting contracts completed, which the bookmaker is deception caused the damage incurred.
3) The Federal Court in an earlier decision (BGHSt 29, 165 (167) made clear) that commits a betting operator which affects the subject of the betting contract in his favor, a fraud, if he that fact at the close of the betting contract is silent:
The contract offer would be withdrawn, the implied statement, the weather was not even the business foundation of the bet changed by an illegal manipulation; in dem Verschweigen der Manipulation liege eine Täuschung durch schlüssiges Handeln (BGHSt 29, 165, 167 f.).
4) Durch die konkludente Täuschung über die Manipulationsfreiheit des Wettgegenstandes ist bei den jeweiligen Mitarbeitern der Wettanbieter auch ein entsprechender Irrtum erregt worden (vgl. BGHSt 29, 165, 168). Die Mitarbeiter der Wettanbieter gingen – jedenfalls in Form des sachgedankli-chen Mitbewusstseins (hierzu näher Tröndle/Fischer aaO § 263 Rdn. 35 m.w.N.) – jeweils davon aus, dass das wettgegenständliche Risiko nicht durch Manipulation des Sportereignisses zu Ungunsten ihres Unternehmens ganz erheblich verändert wird. Ansonsten hätten they rejected the respective betting offers for the offered rate. Just because the freedom from manipulation of the betting object at the conclusion of a sports bets with fixed odds for the parties is of crucial importance for the assessment is of the weather risk, betting final and bookmakers connect with their legally binding statements on a regular basis the idea that the betting object is not tampered with (see also BGHSt 24 , 386, 389). Over here they are wrong but because of the behavior of the other. That error led to an asset disposal, namely, to contract with each bookmaker.
5) When the bet operators disappointment caused by these assets have also suffered prejudice.
In sports betting fixed odds (so-called betting Oddset) the determined based on a specific risk rate shall call the "sale price" is the betting chance;. The rate determined by multiplying the factor by which to operate in the event of a win because the planned production of A and the factory set manipulation of the football games, the betting risk had shifted dramatically in his favor, corresponded to at the conclusion of betting established quotas no longer the risk that any betting its own commercial calculation was based. Such a significantly higher chance of betting profit is considerably worth more than A has paid for this purpose in each case made use of deception. for his particular application, he could buy at a realistic assessment of the weather risk, taking into account the agreed manipulation, only the chance of a significantly lower profit. This "rate difference" is in all weather contract a significant financial loss dar. This resembles a result of the for betting typical relationship between odds and unrealized betting risk by the district court adopted harm same asset risk (against whose adoption while sweeping concerns) and is economically already significant Part of the proposed betting odds for that gain and is therefore recognized rigged games are offered is irrelevant in that regard. Significant thing is that the deception caused bookmakers out of his fortune, a chance of winning grants, which (taking into account the pricing of the betting company), measured on bet too high. Consequently, the gives the deceptive a higher chance of winning than the bookmaker him "sell" for that price with proper risk assessment would.
6) may constitute also the mere concrete risk financial damage the meaning of § 263 StGB. This danger must, however, for economic Approach already represent a deterioration of the current financial position. The illusion of danger arising from the final loss of property for the needs are so great at the date that it is already a reduction of the total liquidation resulting (see BGHSt 34, 394, 395; BGH NStZ 2004, 264). Such a specific threat that speaks already corresponds to a property can only be accepted if the dupe has seriously to reckon with economic costs (BGHSt 21, 112, 113). These conditions are not met, when the likelihood of economic disadvantage is probably not even mainly, but depends on future events that are beyond the influence despite the manipulation is still in very large measure.
7) The operations of the A in the game increased the likelihood of a particular game outcome. The combined results of the games with them have not been touched. The assets of the betting agency has been threatened by the conclusion of the betting Contracts for the "quota damage" also have not hurt like concrete, but only abstractly.
Results: A has acc. § 263 StGB in ten cases of fraud committed an offense. Since the ten betting contracts were completed by independent actions, the ten cases of fraud are gem in coincidence. § 53 StGB committed.
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