Commentary to article 450. Provision of premises knowingly for prostitution or pandering  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Provision of premises knowingly for prostitution or pandering -

     entails a fine for individuals and officials in the amount of one hundred monthly calculation indices, for small businesses - in the amount of one hundred and fifty, for medium-sized businesses - in the amount of three hundred, for large businesses - in the amount of one thousand monthly calculation indices, with the suspension of their activities or certain types of activities for up to three months.

     2. The same action committed repeatedly within a year after the imposition of an administrative penalty, -

     entails a fine on individuals and officials in the amount of one hundred and fifty monthly calculation indices, on small businesses - in the amount of two hundred, on medium-sized businesses - in the amount of four hundred, on large businesses - in the amount of two thousand monthly calculation indices, with the prohibition of their activities or certain types of activities for up to three years from confiscation of income received as a result of committing an administrative offense.

     The object of the offense is public relations in the field of public morality and public order. The optional object of the offense may be the health of the population. The objects of the offense are premises provided for prostitution and pandering.  

     In many developed countries, the provision of intimate services is a legalized business activity that is regulated at the legislative level by the state and protects the rights of citizens involved in this area of public relations. Prostitution is a well-organized shadow business in our country, prostitution is not legalized and therefore there is no official legal definition of prostitution and pandering. Prostitution is not prohibited in the Republic, although legal liability for illegal acts related to it (pandering, human trafficking, involvement, and the maintenance of brothels) is provided for by national codified legislation. Analyzing the definitions of various dictionaries, it should be assumed that:

     1) prostitution is a non–personalized, self-serving sexual relationship. These relationships are based not on mutual attraction, sympathy, or affection, but on the desire to receive appropriate financial rewards for them, which is, as a rule, the main or even the only material source of existence for a person engaged in prostitution. Women and men can provide paid sexual services, such as in both heterosexual and homosexual relationships.;

     2) pandering is a self-serving (or disinterested) professional mediation between people to facilitate extramarital sexual intercourse or to satisfy sexual passion in another form.

     The objective side of part 1 of the commented article is expressed by illegal intentional actions in the form of providing premises knowingly for prostitution or pandering.

     The provision of premises for prostitution or pandering should be distinguished from an ordinary crime, expressed by illegal actions in the form of organizing or maintaining brothels for prostitution and pandering (art. 309 of the Criminal Code).

     The legal concept of a brothel for prostitution and pandering is not provided for by law. However, the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998 No. 3 "On the application of legislation in cases related to illicit trafficking in narcotic drugs, psychotropic substances, their analogues and precursors" clarifies the concept of a brothel provided for the consumption of narcotic drugs or psychotropic substances, their analogues. A brothel may be recognized as a residential or non-residential premises adapted and provided for the consumption of narcotic drugs or psychotropic substances, their analogues.

     A brothel is, in fact, also a room (residential or non-residential), adapted and provided for prostitution or pandering. This means that the organization and maintenance of such premises will entail criminal liability, and only their provision for the purpose of prostitution or pandering is an administrative offense provided for in Article 450 of the Administrative Code.

     The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 29, 2012 No. 7 "On the practice of applying legislation establishing responsibility for human trafficking" clarifies the procedure for qualifying offenses related to brothels. The courts should keep in mind that the organization of a brothel, the maintenance of a brothel and pandering for mercenary purposes, provided for in Article 309 of the Criminal Code, are independent actions and individually constitute a crime. It is possible to organize a brothel for prostitution without its maintenance, or only the maintenance of such a brothel without pandering or pandering for selfish purposes without organizing and maintaining a brothel.

     In practice, premises for prostitution or pandering exist in buildings of baths, saunas, hotels, massage parlors, etc., where, in addition to the traditional functions of the listed premises, illegal services provided for in the commented article are provided.

     According to article 309 of the Criminal Code, pandering for mercenary purposes is a criminal offense, which means that providing premises for the purpose of pandering without mercenary purposes will be an administrative offense.

     For example, a 49-year-old sauna administrator brought a sauna client together with a 19-year-old girl providing intimate services. For which the female administrator did not receive a reward. She rendered her service selflessly, as the client was an old acquaintance of hers.

     During the inspection of the next sauna, a 25-year-old receptionist was detained for pandering, who also brought a client together with a girl to provide intimate services, for which she received 3,000 tenge.

     In the first case, the sauna administrator must be involved as an official (individual) under Article 450 of the Administrative Code. According to the second fact, the administrator should be prosecuted under Article 309 of the Criminal Code for pandering.

     The objective side of part 2 of the article under study provides for administrative liability for actions provided for in the disposition of part one of this article and committed repeatedly within one year.

     The subjective side of the offense in both parts of the article is expressed only by the intentional form of guilt. The guilty person is aware that he provides premises for prostitution and pandering.

     The subjects of both parts of the administrative offense under consideration are:

     1) individuals;

     2) officials;

     3) legal entities in the form of small, medium and large enterprises.

     According to the sanction of the article, when an administrative fine is imposed on a legal entity, its activities or certain types of activities must be suspended for up to three months.

     In accordance with Part 4 of Article 48 of the Administrative Code, before the case is considered in court, a security measure may be applied to a legal entity in the form of suspension or prohibition of activities or certain types of activities in accordance with the procedure provided for in Article 801 of this Code. In this case, the period of suspension or prohibition of the activity or its individual types is included in the period of suspension or prohibition of the activity or its individual types, if this measure of administrative penalty is applied by the court.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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