Comment to article 434-1. Violation of the rules of conduct at sports and mass sports, spectacular cultural events by individuals The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the rules of conduct at sports and mass sports, spectacular cultural events by individuals in the form of:
1) bringing alcoholic beverages, products in metal and glass containers, pyrotechnic products and other items into the venues of sports and mass sports, entertainment and cultural events, the use of which may pose a threat to human life and health or cause material damage to individuals and legal entities;
2) the use of posters, emblems, banners and other visual objects aimed at inciting social, racial, national, religious, class and clan discord, as well as infringing on the rights of individuals during sports and mass sports, spectacular cultural events, if these actions do not contain signs of a criminally punishable act, -
entails a fine on individuals in the amount of twenty monthly calculation indices.
2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine on individuals in the amount of forty monthly calculation indices.
This article first appeared in the codified administrative legislation in accordance with the Law of the Republic of Kazakhstan dated January 22, 2016 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on ensuring safety during sports and mass sports, entertainment and cultural events."
Article 1 of the Law of the Republic of Kazakhstan dated December 15, 2006 "On Culture" contains the definitions used in the commented article.:
1) spectacular cultural events - events aimed at musical and aesthetic education of the population, satisfaction of their spiritual and aesthetic needs, held in places for spectacular cultural events, involving the simultaneous presence of two hundred or more spectators at these events (paragraphs 13-3);
2) places for holding spectacular cultural events - objects and structures adapted for holding spectacular cultural events, as well as other places not designed specifically for these purposes (stadiums, sports palaces, hippodromes, recreation areas, parks, squares, squares, streets), (paragraphs 13-4).
The Law of the Republic of Kazakhstan dated July 3, 2014 "On Physical Culture and Sports" approved the concepts:
1) mass sports events – events aimed at developing a person's physical and intellectual abilities, promoting a healthy lifestyle, held in sports facilities and facilities, as well as open areas intended for mass sports events, involving the simultaneous presence of two hundred or more spectators at these events (paragraphs 40-1);
2) sports event – a sports competition, training camp with the participation of athletes, coaches and specialists in the field of physical culture and sports (paragraph 44);
3) sports competition – a competition among athletes or teams in the type(s) of sports in order to identify the best participant in the competition, conducted in accordance with the regulations (regulations) approved by its organizer (paragraph 42);
4) international sports competitions – competitions in a sport among athletes (teams), in which foreign athletes (teams) take part (paragraph 57).
The general object of the offense in question is public order and morality. The direct object of the offense is public relations in the field of development, dissemination and use of culture, as well as in the field of physical culture and sports.
The objective side of part 1 of the commented article is expressed by illegal actions in the form of violations of the rules of conduct in venues of sports and mass sports, spectacular cultural events and are characterized by the following qualifying features in the form of:
1) carrying alcoholic beverages, products in metal or glass containers;
2) carrying pyrotechnic products and other objects, the use of which may pose a threat to human life and health or cause material damage to individuals and legal entities;
3) the use of posters, emblems, banners and other visual objects aimed at inciting social, racial, national, religious, class and clan discord, as well as infringing on the rights of individuals.
Moreover, the actions specified in paragraph 3 should not contain signs of a criminally punishable act. A competing norm in the Criminal Code of the Republic of Kazakhstan will be article 174 "Incitement of social, national, tribal, racial, class or religious discord," which recognizes illegal acts as:
- deliberate actions aimed at inciting social, national, tribal, racial, class or religious discord, insulting national honor and dignity or religious feelings of citizens;
- propaganda of the exclusivity, superiority or inferiority of citizens on the basis of their attitude to religion, class, nationality, ancestry or race, if these acts are committed in public;
- production or distribution of literature or other media promoting social, national, tribal, racial, class or religious discord.
The procedure for organizing spectacular cultural events is set out in Article 9-1 of the Law of the Republic of Kazakhstan dated December 15, 2006 "On Culture". Organizers of spectacular cultural events are required to place rules of audience behavior in the venues of spectacular cultural events. In accordance with paragraph 3 of Article 11 of this law, individuals are prohibited from:
1) to bring alcoholic beverages, products in metal and glass containers, pyrotechnic products and other objects into the venues of spectacular cultural events, the use of which may pose a threat to human life and health or cause material damage to individuals and legal entities;
2) to throw any objects that pose a threat to human life and health onto stages, arenas, stages, orchestra pits, as well as into places where spectators are located during spectacular cultural events;
3) voluntarily leave the boundaries of fences and cordons, turnstiles during spectacular cultural events;
4) use posters, emblems, banners and other visual objects aimed at inciting social, racial, national, religious, class and clan discord, as well as infringing on the rights of individuals during spectacular cultural events.
On the basis of paragraph 3 of Article 5 of the Law of the Republic of Kazakhstan dated July 3, 2014 "On Physical Culture and Sports", individuals are prohibited from:
1) to bring alcoholic beverages, products in metal and glass containers, pyrotechnic products and other objects into the venues of sports and mass sports events, the use of which may pose a threat to human life and health or cause material damage to individuals and legal entities;
2) to throw any objects that pose a threat to human life and health onto the stands, football fields, hockey and other sports grounds during sports and mass sports events;
3) arbitrarily leave the boundaries of fences and cordon lines, turnstiles during sports and mass sports events;
4) use posters, emblems, banners and other visual objects aimed at inciting social, racial, national, religious, class and clan discord, as well as infringing on the rights of individuals during sports and mass sports events.
The mechanism for detecting and preventing offenses provided for in Article 434-1 of the Administrative Code is set out in Joint Order No. 1 of the Minister of Internal Affairs of the Republic of Kazakhstan dated January 1, 2017 and No. 9 of the Minister of Culture and Sports of the Republic of Kazakhstan dated January 17, 2017 "On Approval of Instructions on ensuring the safety of sports and Mass sports, entertainment and cultural events".
Mass events are divided into international, national and local levels according to their significance. Employees of the Department of Internal Affairs, together with employees of private security agencies, volunteers, supervisors, and organizers, ensure:
1) organized passage of the audience;
2) placement of spectators in the stands, hall, sectors;
3) prohibition of passage of citizens without tickets and passes, as well as persons in a drunken state;
4) with the use of technical means and service search dogs, the inspection of individuals, their belongings, vehicles and transported goods for the carrying of prohibited items (alcoholic beverages, explosives, weapons, beverages in glass containers);
5) measures to prevent the sale of alcoholic and soft drinks in metal and glass containers, pyrotechnic products and other items on the territory of the facility, the use of which may pose a threat to human life and health or cause material damage to individuals and legal entities.
Commenting on the illegal action expressed in the use of posters, emblems, banners and other visual objects aimed at inciting social, racial, national, religious, class and clan discord, it is necessary to determine what is meant by "inciting social, racial, national, religious, class and clan discord."
By virtue of article 14 of the Constitution of the Republic of Kazakhstan, the State guarantees equality of human and civil rights and freedoms, and no one may be discriminated against in any way based on origin, social, official, or property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence, or any other circumstances.
Propaganda or agitation of a violent change in the constitutional order, violation of the integrity of the Republic, undermining the security of the state, war, social, racial, national, religious, class and clan superiority, as well as the cult of cruelty and violence are not allowed (paragraph 3 of Article 20 of the Constitution of the Republic of Kazakhstan).
Thus, the commented article represents the implementation of the constitutional principle of the inadmissibility of an unlawful act aimed at inciting hatred or enmity.
Meanwhile, the legislation does not provide legal certainty as to what constitutes "social discord" and what constitutes "incitement to social discord."
The Scientific and Legal Commentary to the Constitution of the Republic of Kazakhstan, edited by G. Sapargaliyev, states that "incitement of social, racial, national, religious, class and clan discord" refers to programs or actions of public associations aimed at spreading ideas, views, slogans, and other actions that undermine public harmony, trust and respect for people. of a different nationality, race, religion, class, arousing feelings of hostility towards people of other social groups, their way of life, lifestyle, family structure, culture, customs, traditions, etc."
When determining social discord, it should be borne in mind that social groups can be distinguished by any socially significant criteria - gender, age, education, place of residence, professional affiliation, etc. As a result, almost any critical statements about such a group or its individual representatives can be qualified as aimed at inciting social discord.
Racial discrimination means any distinction, exclusion, restriction or preference based on race, skin color, descent, national or ethnic origin, with the aim or consequence of destroying or diminishing the recognition, use or exercise on an equal basis of human rights and fundamental freedoms in political, economic, social, cultural or any other areas of public life. life.
The Universal Declaration of Human Rights of December 10, 1948, the International Covenant on Civil and Political Rights of December 16, 1966, and the International Convention on the Elimination of All Forms of Racial Discrimination of January 4, 1969 are the main international legal norms proclaiming equality of human rights and freedoms, regardless of nationality, race, religious affiliation. They declare criminal and criminally punishable any organizational and propaganda activities aimed at spreading ideas of hatred, superiority and discrimination of any group of people on national, racial or religious grounds.
Meanwhile, in order to properly qualify the composition of an administrative offense, without violating the narrow line between freedom of speech and really hostile actions, they should be clearly distinguished. As an example, let's take Resolution No. 11 of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2011. Moscow "On Judicial Practice in Criminal Cases of Extremist Crimes," which states that "actions aimed at inciting hatred or enmity should be understood, in particular, as statements justifying and (or) affirming the need for genocide, mass repression, deportations, and other illegal actions. Criticism of political organizations, ideological and religious associations, political, ideological or religious beliefs, national or religious customs in itself should not be considered as an action aimed at inciting hatred or enmity.
It is also not an offense to express judgments and conclusions that use the facts of interethnic, interfaith or other social relations in scientific or political discussions and texts and do not aim to incite hatred or hostility, as well as to humiliate the dignity of a person or group of persons on the grounds of gender, race, nationality, language, origin, attitude to religion, membership in any social group.
Measures are being taken against citizens who provoke riots, disrupt mass events and endanger unhindered passage and exit in accordance with the administrative and criminal legislation of the Republic of Kazakhstan.
The subject of an administrative offense is a person who has reached the age of sixteen at the time of the commission of the offense and is sane.
The subjective side is characterized by intent. The person is aware of the illegality of his actions, anticipates what will happen as a result of their commission and desires it. In some cases, the violator does not want such a result, but deliberately allows it. In this case, there is a violation of the rules of conduct at sports and mass sports, spectacular cultural events by individuals, committed with indirect intent.
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.
It is entitled to consider cases of administrative offenses and impose administrative penalties on both parts of the article in question on behalf of the internal affairs bodies.:
1) chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, city of republican significance, capital, their deputies (paragraph 1, part 2, art. 685 of the Administrative Code);
2) heads of departments, police departments, administrative and migration police units,
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.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
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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