Criminal Cassation No. 15869/2025: When Proof of Gambling is Lacking under Art. 718 of the Italian Criminal Code

The ordinance we will examine, issued by the Third Criminal Section of the Court of Cassation on February 21, 2025 (filed April 24, 2025), quashes and remands the decision of the Court of Appeal of Florence, which had convicted P. N. for operating a gambling business under Article 718 of the Italian Criminal Code. The Supreme Court recalls a principle as simple as it is often overlooked: the offense requires concrete proof of the game and the means to facilitate it.

The Facts and the Quashing Decision

The lower court had considered sufficient to constitute the crime the presence in a private club of two tables with mahjong cards, one hundred euros in cash, and the fleeting movement of those present upon the arrival of the officers. The Court of Cassation, by disapplying the ruling, states instead that these circumstances are merely indicative and do not demonstrate the actual conduct or concrete facilitation of gambling, as required by Article 718 of the Italian Criminal Code, to be interpreted in conjunction with Article 192 of the Italian Code of Criminal Procedure (criterion for evaluating evidence).

For the offense under Article 718 of the Italian Criminal Code to be established, proof is required of the actual existence of means for operating or facilitating gambling and of the concrete modalities of its conduct in a public place or a place open to the public, or in private clubs of any kind. (Case in which the Court quashed the conviction decision which had merely reported the circumstances that in the private club there were two tables with cards for the oriental game of "mahjong", that on an adjacent table there was a sum of one hundred euros, and that the persons present, upon seeing the officers, had moved to another area).

Comment: the ruling reiterates that, to punish the operation of a gambling business, it is not enough to find tables, cards, or money. It is necessary to prove that these instruments were actually used—or immediately intended for use—for a game of chance aimed at winning money. Without these concrete modalities, the act remains within the realm of mere presumptions, insufficient to support a criminal conviction. The Supreme Court thus upholds the principle of legality and specificity, preventing the offense from becoming a "variable geometry" offense.

Evidentiary Requirements of Art. 718 of the Italian Criminal Code

• Presence of suitable means (cards, chips, devices, or money) strictly linked to the gambling event.
• Demonstration of concrete modalities of conduct: participants caught in the act or documentation of bets and winnings.
• Setting in a public place, a place open to the public, or a private club, provided it is accessible to a plurality of subjects.
• Correlation between means and modalities: the mere availability of objects does not equate to their use.

Contemporary case law (Cass. No. 26321/2020, No. 48159/2019) confirms the guarantor orientation: the contravention hypothesis lives on a minimum of proof that cannot be substituted by mere presumptions, in accordance with Article 27 of the Italian Constitution (presumption of innocence) and Article 6 of the ECHR.

Defensive Arguments and Practical Implications

For a criminal defense lawyer, the ruling offers two main avenues:

1. Contesting the sufficiency of the evidence. In the absence of dramatic events or seizures in flagrante delicto, it is often possible to break the logical link between instruments and illicit use.

2. Verifying the legality of the officers' entry. If the club is indeed private, entry must comply with the limits of Article 14 of the Italian Constitution and the regulations on inspections.

Conclusions

Cassation No. 15869/2025 reminds us that the offense of operating a gambling business does not tolerate automatisms: it is necessary to prove not only the potential but the actual use of means for gambling. A warning for investigators, an indispensable argument for the defense, and a guarantee for the citizen, so that the criminal sphere remains the ultima ratio and does not slip into conjectural territory.