Comment to article 435. Hooliganism committed by a minor The Code of the Republic of Kazakhstan on Administrative Offences
Minor hooliganism or hooliganism provided for in the first part of Article 293 of the Criminal Code, committed by a minor between the ages of fourteen and sixteen, -
entails a fine on parents or persons replacing them in the amount of seven monthly calculation indices.
In many cases, the fact that a minor has committed an offense is the basis for initiating an administrative offense case against the legal representative of a minor, as well as bringing him to administrative responsibility.
The commented article is based on the concept of petty hooliganism provided for in Article 434 of the Administrative Code. The main feature of this offense is a violation of public order, expressing a clear disrespect for society. Without this sign, there can be no talk of hooliganism, including minor ones. The commission of this offense testifies to the low culture of the juvenile offender, his selfishness, disregard for the interests of society and other people, and disregard for the rules of decency and decency.
The object of the offense is public relations in the field of public order, that is, the system of public relations between people that has developed in society, rules of behavior in public places, defined by regulations, customs, traditions and moral norms. Since the qualifying features of the administrative offense under investigation may be illegal actions in the form of a criminally punishable act, the optional object of the offense may be the life, health and material well-being of people.
The objective side of the offense is formed by illegal intentional actions provided for in Articles 434 of the Administrative Code and 293 of the Criminal Code.
Minor hooliganism is expressed by the following illegal actions:
1) swearing in public places;
2) abusive harassment of individuals;
3) desecration of residential premises;
4) pollution of public areas, parks, squares, including the release of municipal waste in unidentified places;
5) other similar actions expressing disrespect for others, violating public order and peace of mind of individuals.
When qualifying an offense, it should be borne in mind that the above illegal actions may exist independently and combine with each other. Brief characteristics of the above-mentioned signs of an offense are given in the comments to Article 434 of the Administrative Code.
The qualifying signs of criminal hooliganism are illegal acts provided for in the first part of Article 293 of the Criminal Code, namely:
1) a particularly audacious violation of public order, expressing obvious disrespect for society, accompanied by the use of violence against citizens or the threat of its use;
2) acts related to the destruction or damage of other people's property;
3) the commission of obscene acts characterized by exceptional cynicism.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 3 "On judicial practice in cases of hooliganism" clarified the concepts of qualifying signs of criminal hooliganism. A distinctive feature indicating a greater degree of public danger of criminally punishable hooliganism compared to minor hooliganism is the special audacity of violating public order, expressing a clear disrespect for society.
In cases where obscenity in public places, insulting harassment of individuals, desecration of residential premises, common areas and other similar actions expressing disrespect for others, violating public order and peace of mind of individuals, were accompanied by the use of violence or the threat of its use, as well as the destruction or damage of other people's property, such actions come out They go beyond the scope of an administrative offense and form part of a criminally punishable hooliganism.
A particularly audacious violation of public order may be recognized as such a criminal violation of public order expressing obvious disrespect for society, which was accompanied by the use of violence against citizens or the threat of its use, the destruction or damage of other people's property, or the commission of obscene acts characterized by exceptional cynicism. Such actions can also include a prolonged and persistent violation of public order, disruption of a mass event, temporary cessation of normal activities of an enterprise, institution, organization or public transport.
Obvious disrespect for society should be understood as a demonstrative violation of generally accepted norms and rules of behavior, dictated by the perpetrator's desire to set himself against others, to demonstrate a disdainful attitude towards them.
Exceptional cynicism should be understood as actions that were accompanied by demonstrative disregard for generally accepted norms of morality, for example, shamelessness, bullying of the sick, elderly, helpless persons, and others.
The indictment and the verdict must necessarily reflect what exactly the particularly audacious violation of public order was expressed in, and the obscenity of hooliganism was revealed. It is unacceptable to indicate in the verdict qualifying signs of hooliganism that were not imputed to the person by the criminal prosecution authorities.
Based on Article 28 of the Administrative Code, the subjects of an administrative offense are physically sane citizens who have reached the age of sixteen by the time the administrative offense ends or is suppressed. But according to Article 435 of the Administrative Code, only minors between the ages of fourteen and sixteen can be the subject of an offense, but the subjects of administrative responsibility are parents or persons replacing them. If it is clear with the subject "parents", then with "persons replacing them" some clarity is required.
According to subparagraph 12) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family", the concept of "legal representatives" uses the concept of "and other persons replacing them who, in accordance with the legislation of the Republic of Kazakhstan, provide care, education, upbringing, protection of the rights and interests of the child." In addition to the parents, the legal representatives include the adoptive parents (adoptive parents), the guardian or trustee, the foster parent (foster parents), foster carer.
At the same time, although the legislator limited himself to the concept of parents and persons replacing them, when defining the subject of an administrative offense of Article 435 of the Administrative Code, in this context, the subject should be understood as both parents and adoptive parents (adoptive parents), guardians, foster parents, foster carers, since all these persons replace parents, providing care, education, upbringing, protection of the rights and interests of the child.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On certain issues of application by courts of the norms of the General Part of the Code of Administrative Offences of the Republic of Kazakhstan" clarified the procedure for initiating cases of administrative offences provided for in Article 435 of the Administrative Code. A protocol on an administrative offense committed by a person between the ages of 14 and 16, in cases where the norms of the Administrative Code provide for the responsibility of parents or persons replacing them, is drawn up in relation to these persons. The decision issued in the case of an administrative offense against such persons should indicate how their guilt in the offense is expressed.
The subjective side of the administrative offense under study is characterized by an intentional form of guilt in the form of direct or indirect intent.
In cases of administrative offenses provided for in the commented article, protocols on administrative offenses may be drawn up by authorized officials of the internal affairs bodies (art. 804 of the Administrative Code).
Judges of specialized inter-district juvenile courts have the right to consider cases of administrative offenses provided for in Article 435 of the Administrative Code.
In accordance with part 4 of Article 812 of the Administrative Code, cases of administrative offenses of minors, their parents or persons replacing them are considered at the place of residence of the person against whom proceedings on an administrative offense are being conducted. Therefore, if there are no juvenile courts at the place of residence, cases can be considered in specialized administrative courts.
Despite the fact that the offender is actually a minor, educational measures cannot be applied to him, since they can only be applied to persons who have reached the age of 16 at the time of the commission of an administrative offense, but have not turned eighteen (Part 1 of Article 65 of the Administrative Code).
Paragraph 22 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 provides for the possibility of establishing special requirements for the behavior of a minor. The prohibition provided for in subparagraph 3) of the first part of Article 54 of the Administrative Code for minors to visit certain places or travel to other areas without the permission of the Commission for the Protection of minors' rights may be imposed by a court for a period of three months to one year only at the request of participants in the proceedings on an administrative offense or law enforcement agencies during the consideration of the case. Such a ban is established as a special requirement for the behavior of a person who has committed an administrative offense under Article 435 of the Administrative Code and is applied regardless of the imposition of penalties and applies to minors who are brought to administrative responsibility repeatedly.
But since in our case it is not a minor who is brought to administrative responsibility, but his parents and their surrogates, it is possible to establish special requirements for behavior only in relation to adults. Parents and their surrogates themselves do not commit hooligan acts provided for in Article 435 of the Administrative Code, therefore, it is justified that Article 435 should be excluded from the list of articles listed in Article 54 of the Administrative Code. y
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: 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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