Comment to article 437. Violation of silence of the Code of the Republic of Kazakhstan On Administrative Offenses
1. Violation of silence at night (from 23 to 6 a.m.), including carrying out noisy work in and outside residential premises that is not urgently necessary and impedes the normal rest and peace of mind of individuals, -
entails a fine for individuals in the amount of five, for small businesses or non-profit organizations - in the amount of ten, for medium-sized businesses - in the amount of fifteen, for large businesses - in the amount of fifty monthly calculation indices.
2. The same action committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine for individuals in the amount of ten, for small businesses or non-profit organizations - in the amount of twenty, for medium-sized businesses - in the amount of thirty, for large businesses - in the amount of ninety monthly calculation indices.
The object of the offense is public order. The concept of public order includes relations that develop in society and are regulated by the norms of law and morality in order to ensure the inviolability of citizens, protect their rights and freedoms, protect the national heritage, ensure peace and create the necessary conditions for people to communicate in the process of meeting their various vital needs. Normative regulatory regulation of public order is carried out by various social norms, legal, moral, as well as customs, rules of the dormitory. The central place in the mechanism of regulatory regulation of public order is occupied by legal norms.
The objective side of part 1 of Article 437 of the Administrative Code is characterized by the following qualifying features:
1)violation of silence by any actions (playing musical instruments, using household appliances, singing, loud conversations, etc.) at night from 23 to 6 a.m., preventing normal rest and tranquility of citizens;
2) carrying out household chores accompanied by noise, which interfere with the normal rest and tranquility of citizens.
It should be recognized that the objective side of the offense is completely absorbed by the qualifying feature of Article 434 of the Administrative Code: "other similar actions expressing disrespect for others, violating public order and the peace of citizens." That is, any active actions of the subject of the offense that violate the norms of the dormitory, including from 23 to 6 a.m., could be qualified under art. 434 of the Administrative Code. According to M.A. Kyzylov, S.V. Korneychuk, O.S. Savitskaya, it was suggested that this rule of law could be decriminalized. For example, in the Code of Administrative Offenses of the Russian Federation, the concept of "violation of silence" is absorbed by art. 20.1 "minor hooliganism", especially since the sanctions almost coincide.
If a violation of silence occurs by firing firearms, gas, pneumatic weapons, launching pyrotechnic substances and products with their use in populated areas, then the offense must be qualified under Article 436 of the Administrative Code. The fact of bringing to administrative responsibility under Article 437 of the Administrative Code is a qualifying sign of the repetition of an administrative offense provided for in part four of Article 436 of the Administrative Code "Firing firearms, gas, pneumatic weapons, launching pyrotechnic substances and products with their use in populated areas."
Part 4 of Article 436 states that "The actions provided for in parts one and two of this Article, committed repeatedly within a year after the imposition of an administrative penalty, as well as by a person who was brought to administrative responsibility during the year for an offense provided for in Article 437 of this Code."
The objective side of Part 2 of the commented article provides for a qualifying sign of the commission of an offense provided for in part one of the article repeatedly within a year after the imposition of an administrative penalty. It should be noted that officials of the Department of Internal Affairs authorized to impose administrative penalties and initiate proceedings on an administrative offense under Article 437 of the Administrative Code should take into account the repeated actions of the offender only as a qualifying feature, and not as an aggravating circumstance.
The regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 states that "An offense is not recognized as repeated if a person has been released from administrative responsibility and administrative punishment for a previously committed offense on the grounds established by law."
The subject of the offense may be:
1) physically capable and sane persons who have reached the age of 16;
2) legal entities that are subjects of small, medium and large enterprises.
If the "silence" is violated by persons who have not reached the age of administrative responsibility, then according to Article 72, Part 2 of the Administrative Code, compulsory preventive measures and educational measures provided for in the ninth chapter of the Code of the Republic of Kazakhstan on Administrative Offenses should be applied to them.
The subjective side of the commented article can only be expressed in the form of direct intent.
They have the right to initiate proceedings under the commented article and impose an administrative penalty.:
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 divisions, migration police, local police service of the district (city, district in the city) and their deputies (paragraphs 2, part 2, art. 685 of the Administrative Code);
3) impose an administrative penalty only under Part 1 of Article 437 of the Administrative Code - employees of the internal affairs bodies (police) with special ranks (paragraph 4 of Part 2 of Article 685 of the Administrative Code)
Officials of the military police bodies of the Armed Forces of the Republic of Kazakhstan in relation to military personnel and employees of the Armed Forces of the Republic of Kazakhstan have the right only to draw up protocols on administrative offenses provided for in the article in question (paragraphs 5, Part 3, Article 804 of the Administrative Code).
It should be noted that when deciding on the imposition of an administrative penalty, it is possible to apply Article 64-1 of the Administrative Code, releasing the offender from administrative responsibility due to the insignificance of the offense. The offense is formal and does not pose a great public danger. When deciding whether to release a person from administrative responsibility on the grounds specified in Article 64-1 of the Administrative Code, the specific circumstances of the commission of an administrative offense, including the identity of the offender, as well as the object of the encroachment, and if there is harm, its size, are taken into account.
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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