Commentary on Article 309. Organization or Maintenance of Brothels for Prostitution and Procuring of the Criminal Code of the Republic of Kazakhstan
1. Organization or maintenance of brothels for prostitution, as well as procuring for mercenary purposes —
shall be punishable by imprisonment for a term of up to five years, with confiscation of property.
2. The same acts committed:
1) by a group of persons upon prior conspiracy;
2) repeatedly;
3) in conjunction with the involvement of a minor in prostitution, —
shall be punishable by imprisonment for a term of three to seven years, with confiscation of property.
3. Acts provided for in Parts One or Two of this Article, committed by a criminal group, —
shall be punishable by imprisonment for a term of five to ten years, with confiscation of property.
The public danger of this crime lies in the gross violation of public morality, since conditions are created for the spread of such an antisocial phenomenon as prostitution. The public danger of this crime increases if the unlawful acts are associated with the involvement of a minor in prostitution, since the physical and moral development of the younger generation is placed at risk.
The subject matter of the crime is a brothel, which should be understood as residential premises (an apartment, room, country house, etc.) or non-residential premises (a sauna, massage room, basement, etc.) adapted and provided over an extended period for the purpose of engaging in prostitution.
The object of the crime is public morality, while the additional object is human health.
From the objective perspective, the crime is expressed in the commission of the following acts: organizing or maintaining brothels for prostitution, or procuring for mercenary purposes.
The organization of a brothel should be understood as actions aimed at its establishment, finding a suitable location, renting, adapting and equipping the premises, recruiting persons who will engage in prostitution, and selecting service personnel (those responsible for guarding prostitutes, transporting them, and “extorting” payment for the services provided by prostitutes).
The organizer of a brothel is often the owner of the premises where the brothel has been established, or a person who possesses such premises, as well as a person who facilitates the organization of the brothel by financing this activity.
The organization of a brothel for prostitution constitutes a completed crime not from the moment prostitution actually begins there, but from the moment the brothel has been established and is ready to operate, regardless of whether the purpose for which it was established will be achieved.
The maintenance of a brothel means the performance of a system of actions aimed at ensuring its operation (providing material support, security, repairs, servicing clients, etc.).
Persons who maintain a brothel do so for the purpose of deriving profit from the exploitation of persons engaged in prostitution. A person maintaining a brothel does not necessarily have to be the owner of the premises. The elements of the crime under consideration are absent if the owner or user of the premises does not provide it to other persons but personally engages in sexual misconduct with changing partners.
The maintenance of brothels is an activity intended to involve the repeated provision of premises or other locations for prostitution. The act shall be considered completed from the moment the maintenance of the brothel begins. Activities involving the use of places accessible to everyone, to which the person has no connection whatsoever (a basement, attic), do not fall under the characteristics of “maintaining brothels.”
Procuring means mediation for mercenary purposes between men and women who readily engage in sexual relations, in order to facilitate their entry into sexual relations and arrange meetings for the purpose of engaging in sexual acts, etc.
Procuring may take the form of finding persons willing to engage in prostitution. Repeated mediation in prostitution is not required for procuring; however, a single instance does not always possess the degree of public danger inherent in a criminal offence (Part 4 of Article 10 of the Criminal Code).
Persons engaged in procuring are called pimps. They maintain regular contact with prostitutes and may at any time act as intermediaries between them and visitors seeking “live merchandise.” They have a financial interest in this activity, since the woman is obliged to pay the intermediary a portion of her earnings.
By its legal structure, the corpus delicti is formal and is considered completed from the moment procuring begins.
The subject of the crime is a physically sane individual who has reached the age of 16.
The subjective element of the crime is characterized by guilt in the form of direct intent. The person is aware that they are organizing or maintaining brothels for prostitution or engaging in procuring for prostitution, and desires to do so.
Article 309 of the Criminal Code does not specify the purpose pursued by the perpetrator when organizing and maintaining a brothel. Consequently, this element is not mandatory when committing the two aforementioned acts. In the theory of criminal law, the opinion is expressed that these acts are committed for mercenary purposes. An analysis of law enforcement practice also confirms this. However, in practice, there are cases of organizing and maintaining brothels for prostitution for the purpose of gratifying “important” or “useful” individuals. Such actions contain the elements of Article 309 of the Criminal Code.
An obligatory element of the subjective side of procuring is its purpose. In order to establish the elements of a crime in the actions of the perpetrator in this case, it is necessary to establish that the procurer pursued the purpose of obtaining material benefit. Gratuitous procuring, where a person pursued not a mercenary purpose but some other personal benefit, such as career advancement, is not subject to liability under this Article of the Criminal Code.
Part 2 of Article 309 of the Criminal Code provides for the following qualifying elements of this crime: 1) commission by a group of persons upon prior conspiracy; 2) repeated commission; 3) association with the involvement of a minor in prostitution (for the first two elements, see the commentary to Part 3 of Article 297 of the Criminal Code).
The involvement of a minor in prostitution is the most immoral and more socially dangerous criminally punishable act, since physical and moral harm is caused to the younger generation.
The involvement of a minor in prostitution should be understood as targeted actions by the person doing the involving, aimed at forming in the minor a desire (intention, aspiration) and willingness to participate in prostitution. At the same time, as stated in Paragraph 24 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002, “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts,” the actions of an adult must be active in nature and may be accompanied by the use of psychological or physical coercion (beatings, persuasion, threats and intimidation, bribery, deception, etc.).
Unlike Article 308 of the Criminal Code, under this provision the victim is a minor, that is, a person under the age of 18 who has been involved in prostitution.
Taking into account the particular vulnerability of this social group, the Law of the Republic of Kazakhstan dated August 8, 2002, “On the Rights of the Child in the Republic of Kazakhstan,” was adopted. Article 40 of the aforementioned Law states that involving a child in prostitution entails liability as provided for by the laws of the Republic of Kazakhstan.
The organization or maintenance of brothels for prostitution and procuring may be accompanied by the commission of other crimes, which requires qualification of the acts in aggregate as criminal offences under Article 309 and, for example, Articles 120 and 122 of the Criminal Code.
Part 3 of Article 309 of the Criminal Code establishes such a particularly qualifying element as the commission of the act by a criminal group (see the commentary to Part 4 of Article 297 of the Criminal Code).
The act provided for in Part 1 of Article 309 of the Criminal Code belongs to the category of crimes of medium gravity.
The acts provided for in Parts 2 and 3 of Article 309 of the Criminal Code belong to the category of serious crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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