Commentary to Art. 241 of the Criminal Code of the Russian Federation
The object of the crime is public morality.
An optional subject is relations to protect human health.
The objective side is expressed by several alternative actions: 1) actions aimed at organizing prostitution by other persons; 2) maintaining dens for prostitution; 3) systematic provision of premises for prostitution.
Criminal Code of the Russian Federation in Art. 33 defines that “an organizer is a person who organized the commission of a crime or supervised its execution, as well as a person who created an organized group or criminal community (criminal organization) or supervised them.”
Based on this definition, two forms of actions by the organizers of the brothel can be distinguished: actions as a result of which the brothel arises (for example, choosing a location, etc.); actions that make it possible to use the den in accordance with the purposes of its creation (selection of prostitutes, search for clients, purchase of food and alcoholic beverages, etc.).
The organization of dens for prostitution is the activity of one or more persons aimed at creating a den and its functioning. The nature of the actions of persons organizing brothels can be different: development of a plan for creating a brothel and its implementation, selection (selection) of a room or other place for use as a brothel; selection of “personnel” providing sexual services, search for clients, etc. Organizational activities can be distributed among several members, when one is looking for premises for a brothel, and the other attracts clients to it. The actions of these persons, covered by a common purpose, must be qualified as co-execution under Art. 241 of the Criminal Code of the Russian Federation without reference to Art. 33 of the Criminal Code of the Russian Federation.
Organizing a brothel is a completed crime not from the moment when prostitution actually begins in it, but from the moment when the brothel is created and ready to function, regardless of whether the purpose of its creation is realized.
The owner of a brothel may be a person in whose possession or disposal there is a premises or any place in which intimate services are provided for a fee. Possession or disposal of a premises or place can be carried out legally or arbitrarily. In order for a person to have the contents of maintaining a brothel in his actions, it is necessary to establish the systematic provision of a brothel. A one-time provision of premises for sexual intercourse with a person engaged in prostitution does not constitute a crime. The maintenance of a brothel includes the following activities: receiving prostitutes and clients; making settlements with clients; brothel security; maintaining order in it; provision of food, alcoholic beverages, payment of utilities, etc.
Brothel maintenance is an activity designed to repeatedly provide premises or other places for prostitution. The act should be considered completed from the moment the brothel begins to be maintained. The concept of “keeping a den” does not include activities related to the use of places accessible to everyone, to which a person has no connection, for example, a basement or attic. The corpus delicti is formal.
The subjective side of the crime is characterized by guilt in the form of direct intent. A mandatory element of the crime is the purpose of prostitution.
The general subject of the crime is a sane person who has reached the age of sixteen.
In Part 2 of Art. 241 of the Criminal Code of the Russian Federation establishes liability for the same acts committed: a) by a person using his official position; b) with the use of violence or the threat of its use; c) using an obviously minor for prostitution.
Persons using their official position to organize prostitution include officials of state bodies, local government bodies, state and municipal institutions, civil servants and employees of local government bodies, as well as managers and employees of commercial and non-profit organizations that are not government bodies, local governments, state and municipal institutions.
The concepts of the use of violence or the threat of its use are similar to the corresponding concept considered in relation to the elements of involvement in prostitution (Article 240 of the Criminal Code of the Russian Federation).
The use of a person known to be a minor for prostitution involves the involvement in prostitution of a person known to be under the age of eighteen by the perpetrator (see also the commentary to Article 240 of the Criminal Code of the Russian Federation).
Acts provided for in Part 1 or Part 2 of the article in question, committed with the use of persons known to be under fourteen years of age for prostitution, entail liability under Part 3 of Art. 241 of the Criminal Code of the Russian Federation.
Criminal liability for trafficking in pornographic materials and objects: illegality of actions
The material presented has been prepared taking into account the latest trends in the legal interpretation of Russian legislation, and is based on the established law enforcement, as well as the personal practice of the author, lawyer Pavel Domkin. The commentary to this article does not constitute legal advice or guidance for making independent procedural decisions. If legal issues arise, or before taking any legally significant action, readers are advised to obtain appropriate legal advice from the author of the publication.
Publication dated 08/09/2011
Update: Read about new trends in the practice of applying Article 242 of the Criminal Code of the Russian Federation in the publication dated 02/07/2017.
Article 242 of the Criminal Code of the Russian Federation provides for the possibility of bringing to criminal liability for a number of actions related to the illegal trafficking of pornographic materials and items, namely:
- for their production for the purpose of distribution or advertising,
- for distribution,
- for advertising pornographic materials or items,
- for illegal trade in printed publications, film or video materials, images or other items of a pornographic nature.
The given list of criminal offenses is exhaustive.
In accordance with the basic principle enshrined in Article 8 of the Criminal Code of the Russian Federation, the basis for criminal liability is the commission of an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation. In other words, when carrying out criminal prosecution, the investigative body is obliged to prove every element of the crime. In relation to the article under consideration, these will be not only such obvious signs as production, distribution, trade, etc., but such a key sign as the “ illegalness ” of the actions of the subject.
From the above it follows that not every action related to the circulation of pornographic material will be criminally punishable, but only that which goes against the current law. The guilty person can be held accountable only if he violates the current law of the Russian Federation regulating the procedure for production, distribution, advertising, trade, as well as other actions with the specified material.
The procedural failure to prove the sign of “illegality” is a direct, unconditional basis for termination of criminal prosecution and legal acquittal of a person.
Based on the above, a legitimate question arises: violation of which law must be proven when carrying out criminal prosecution under Article 242 of the Criminal Code of the Russian Federation?
Turning to the regulatory framework of the current legislation, the author is forced to state that at the time of publication of this material, such a law does not exist in the Russian Federation. During the entire period of validity of the article in question of the Criminal Code of the Russian Federation (since 1997), the legislator has never established rules for civil circulation in relation to pornographic material. Of course, this gap in the legal field can be used when raising the issue of bringing to criminal liability under Article 242 of the Criminal Code of the Russian Federation.
It should also be noted that the argument that a person’s actions do not contain the sign of “illegality” is not applicable in relation to the production and circulation of materials or objects with pornographic images of minors (Article 242.1 of the Criminal Code of the Russian Federation), since the disposition of this article establishes a direct ban on any circulation of such content , excluding the possibility of its legitimate circulation.
The widespread everyday opinion about the impossibility of bringing to criminal liability due to the lack of a legislative definition of “pornographic material” seems erroneous. The Criminal Code of the Russian Federation repeatedly contains definitions and terms that do not have a clear legislative interpretation.
For example, Article 164 of the Criminal Code of the Russian Federation provides for criminal liability for theft of items of special value. Since the term “item of special value” is not described by the legislator and is not legally established, the value of the stolen item is established by conducting an appropriate examination, which in the legal sense gives it historical, cultural, scientific, etc. significance (value). Law enforcement practice has followed a similar path in relation to pornographic materials.
As a rule, for products of the category “For adults” seized by the investigation, the investigative body appoints an art criticism or other similar examination, during which the specialist makes a conclusion that the content or item is classified as pornographic. Due to the lack of criteria and methods for conducting such studies, appropriate conclusions for each case are made by an expert individually . In practice, Russian courts generally trust such expert research and use it as the basis for convictions.
Thus, the “bet” on the absence of a legislative definition of the term “pornographic material and object” as a basis for the impossibility of bringing to criminal liability is often erroneous .
As stated earlier, it is the legal impossibility of proving actions related to the circulation of pornographic products as violating the current law (the sign is “illegality”) that represents a more promising way of procedural defense against the accusation.
Lawyer Pavel Domkin
Practice of application of Article 242.1 of the Criminal Code of the Russian Federation
Responsibility for distributing pornography on the Internet using torrents
Judicial practice under Article 241 of the Criminal Code of the Russian Federation
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02/09/2018 N 1-APU17-12
In his opinion, the reliability of K.’s testimony is also affected by the fact that he himself could essentially be held accountable under Art. 241 of the Criminal Code of the Russian Federation, as evidenced by the relevant procedural documents available in the case. It is noteworthy that the court (p. 122 of the verdict), concluding that Sokolov, Shkaev, Sivkov and Zheksembaev had previously determined the roles and location of the crime, did not provide evidence to support these conclusions.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 31, 2018 N 11-APU18-20SP
acquitted of the charge of committing a crime under paragraph “b” of Part 2 of Art. 241 of the Criminal Code of the Russian Federation, on the basis of paragraphs 1 and 4 of Part 2 of Art. 302 of the Code of Criminal Procedure of the Russian Federation for the absence of a crime in connection with the rendering of a not guilty verdict by the jury, with the recognition of his right to rehabilitation in this part,
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated 02/05/2019 N 205-APU19-2
As follows from the case materials, the trial, starting from the preparatory part of the court hearing and ending with the sentencing (from May 25 to October 15, 2021), in accordance with Art. 242 of the Code of Criminal Procedure of the Russian Federation was carried out by judges O., K. Zh. and with the direct participation of the defendant Gugov I.A., as provided for in Part 6.1 of Art. 241 of the Criminal Code of the Russian Federation.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 24, 2019 No. 5-APU19-34
considered at the court hearing the appeal of Mamyrkanov E.T. on the decision of the Moscow City Court dated March 22, 2021, by which the complaint of Mamyrkanov Eldiyar Telekovich, ..., on the decision of the Deputy Prosecutor General of the Russian Federation dated February 25, 2021 on his extradition to law enforcement agencies of the Kyrgyz Republic for prosecution under Part 1 of Art. 241 of the Criminal Code of the Kyrgyz Republic was left without satisfaction.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated May 16, 2018 N 31P18
According to the verdict of the Oktyabrsky District Court of Irkutsk dated March 29, 2010, Mandrykin A.V. convicted under Part 1 of Art. 241 of the Criminal Code of the Russian Federation to imprisonment for a period of 2 years, under paragraph “a”, part 2 of Art. 240 of the Criminal Code of the Russian Federation (as amended by Federal Law of December 8, 2003 N 162-FZ) - to imprisonment for a period of 3 years, under paragraphs “a”, “c”, part 2 of Art. 240 of the Criminal Code of the Russian Federation (as amended by Federal Law No. 162-FZ of December 8, 2003) - to imprisonment for a period of 3 years 6 months. Based on Part 3 of Art. The Criminal Code of the Russian Federation for the totality of crimes, by partial addition of punishments, was finally assigned to Mandrykin A.V. punishment in the form of imprisonment for a period of 5 years to be served in a general regime correctional colony.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated January 23, 2019 N 255P18
Artamonov Vladimir Yuryevich, ... was detained on April 20, 2010 in accordance with Art. Art. 91, 92 of the Code of Criminal Procedure of the Russian Federation on suspicion of committing crimes under paragraph “a” of Part 2 of Art. 241, part 1 art. 285 of the Criminal Code of the Russian Federation.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 18, 2017 N 49-APU17-9
- clause “b”, part 2, art. 241 of the Criminal Code of the Russian Federation to 3 years with restriction of freedom for 1 year; - part 3 art. 240 of the Criminal Code of the Russian Federation to 4 years with restriction of freedom for 1 year; - part 1 art. 163 of the Criminal Code of the Russian Federation (for the episode of February 20, 2015 in relation to R.) to 2 years;
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 9, 2017 N 73-APU17-19
Litvinova Tatyana Evgenievna, ... convicted by the verdict of the Zheleznodorozhny District Court of Ulan-Ude dated November 18, 2016 under Part 2 of Art. 210, paragraphs “b”, “c”, part 2 of Art. 241, part 3 art. 240, part 3 art. 240, part 3 art. 240 of the Criminal Code of the Russian Federation to 2 years 3 months of imprisonment in a general regime correctional colony, -
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 20, 2017 N 49-APU17-8
sentenced to imprisonment under Part 2 of Art. 209 of the Criminal Code of the Russian Federation for a period of 8 years with restriction of freedom for 6 months, under Part 3 of Art. 240 of the Criminal Code of the Russian Federation for a period of 3 years, under Part 1 of Art. 241 of the Criminal Code of the Russian Federation for a period of 2 years; and to correctional labor under Part 1 of Art. 139 of the Criminal Code of the Russian Federation for a period of 5 months with a monthly deduction of 10% of wages to the state income.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 17, 2020 No. 3-APU19-10
It is noteworthy that witness P. stated in court that his testimony at the investigation was rumors and speculation, and does not confirm them. And A.’s testimony (protocol dated March 30, 2015, pp. 96, 104 - 105) refutes the verdict against him dated October 4, 2011 under Art. 241 of the Criminal Code of the Russian Federation (vol. 86, pp. 231 - 233), where A. admits that he organized everything himself.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated November 11, 2020 N 88P20
Kotovsky Alexander Alexandrovich, ... was detained on May 18, 2016 in accordance with Art. Art. 91, 92 of the Code of Criminal Procedure of the Russian Federation on suspicion of committing a crime under paragraph “b” of Part 2 of Art. 241 of the Criminal Code of the Russian Federation. On May 20, 2021, by the judge of the Naberezhnye Chelny City Court of the Republic of Tatarstan in relation to Kotovsky A.A. a preventive measure was chosen in the form of detention for a period of 1 month 19 days, that is, until July 7, 2021.
