Review

From 2009 to 2020, when gambling was prohibited, it was easy to prove its illegality, since all activities were automatically considered illegal. After legalization in 2021, licensed gambling organizers appeared, and Art. 203-2 of the Criminal Code of Ukraine changed: criminal liability is now provided only for activities without a license. Due to the change in the disposition of the article and the composition of the crime, the range of circumstances to be proven in criminal proceedings regarding illegal gambling by both the prosecution and the defense has also changed. Statistics indicate the effective work of the defense, as less than 10 % of criminal proceedings from the pre-trial investigation stage move to the trial stage, which may indicate the use of these criminal proceedings to pressure business, therefore it is very important for the defense to have a clear idea of the range of circumstances that must be proven by the defense.

The purpose of the article is to establish the circumstances that must be proven by the defense in criminal proceedings under Art. 203-2 of the Criminal Code of Ukraine.

The author concludes that the circumstances that must be proven by the defense in criminal proceedings on illegal activities in organizing or conducting gambling depend on the chosen line of protection of the suspect’s rights – complete refutation or weakening of suspicion. The task of the defense is to provide the defendant with the most acceptable and positive result in a specific criminal proceeding – the recognition of the defendant as innocent (acquittal), «reduction» of guilt or reduction of punishment (mitigation of liability), release from criminal liability or testimony (exclusion of liability). Therefore, the defense attorney must obtain and present evidence that refutes suspicion or accusation, mitigates or excludes the criminal liability of the client, or refutes the evidence of the prosecution.

Keywords: gambling business, gambling, defense tactics, defense attorney, evidence, subject of evidence, circumstances subject to proof, pre-trial investigation.