Comment to article 438. Deliberately false call of special services The Code of the Republic of Kazakhstan on Administrative Offences
1. Deliberately false call of the state fire service, police, ambulance, emergency services -
entails a fine for individuals in the amount of thirty monthly calculation indices.
2. The actions provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty or committed during the liquidation of accidents, fires, consequences of natural disasters, -
they entail a fine on individuals in the amount of sixty monthly calculation indices.
3. The actions provided for in the first and second parts of this Article, committed by minors between the ages of fourteen and sixteen, -
entail a warning or fine for parents or persons replacing them, in the amount of fifteen monthly calculation indices.
The object of the offense is public relations in the field of public order. The generic object of the offense is the established procedure for the functioning of special services.
False calls that do not correspond to the actual need disrupt the work of special services, lead to unjustified costs and distract these services from performing their traditional tasks.
The objective side of the offense provided for in part 1 of the commented article is expressed by deliberate actions in the form of a deliberately false call to special services. The list of such services is listed in the disposition of the part of this article.:
1) the State fire service;
2) the police;
3) emergency medical services;
4) Emergency services.
This list is exhaustive and is not subject to extended interpretation when qualifying the administrative offense under investigation.
The perpetrator may make a deliberately false call to himself or others by phone, fax, mobile communication, or text message (SMS). At the same time, the information transmitted by them should not correspond to reality.
A deliberately false call should be understood as the deliberate actions of a person who realizes that the information provided to them does not correspond to reality, namely, they are false, and wants to mislead the relevant government agencies with them, thus hindering their work. At the same time, cases of incorrect summoning due to a conscientious error, incorrect assessment may not constitute an administrative offense provided for in the commented article. In law enforcement practice, such cases are considered based on all the available circumstances of the case.
The objective side of the offense provided for in part 1 of the article in question is expressed by illegal actions set out in part one of Article 438 of the Administrative Code, which were committed:
1) repeatedly within a year after the imposition of an administrative penalty;
2) during the liquidation of accidents, fires, and the consequences of natural disasters.
False calls from specialized services actually hinder their work related to taking emergency measures to save the lives and health of citizens, their property, of any form of ownership, and combating administrative offenses and crimes. A false call to special services during the liquidation of accidents, fires and the consequences of natural disasters further harms society, as it distracts these services from emergency rescue operations. In this regard, this norm provides for a more severe punishment (by 100%) than the sanction of part 1 of Article 438 of the Administrative Code.
The subject of the offense provided for in parts 1 and 2 of the analyzed article is a sane individual who has reached the age of sixteen at the time of the termination or suppression of an administrative offense.
The objective side of the offense provided for in part 3 of the article under study is expressed by illegal actions provided for in parts one and two of this article, committed by minors between the ages of fourteen and sixteen.
The subject of the offense provided for in paragraph 3 of this Article is minors between the ages of fourteen and sixteen. The subjects of administrative responsibility are parents or persons replacing them, and a protocol on an administrative offense is drawn up against these persons.
This procedure is explained by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 12 "On some issues of application by courts of the norms of the General Part of the Code of Administrative Offences of the Republic of Kazakhstan". 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 all parts of the commented article is expressed by direct intent. The person is aware that the call to special services is false and that there are no grounds for the call. If there is a misconception that special services need to be called, administrative responsibility does not occur.
For example, every year in Almaty, up to 30 thousand calls to the ambulance are recorded with a request to help a pet or other requests. If such messages are immediately dismissed, then in the case when citizens complain of feeling unwell and only after the arrival of doctors it is discovered that this is just a malicious joke, problems arise. For example, one Almaty woman called an ambulance 400 times within four months! And taxpayers have to fork out for such challenges, over 132 million tenge is spent from the treasury per year.
It should be noted that criminal liability may occur if special services are falsely called. It is not uncommon for citizens to call special services with a message about a bomb being planted, or about the mining of a building (object), such actions will be qualified under Article 237 of the Criminal Code "Knowingly false report of an act of terrorism."
Authorized officials have the right to draw up protocols on administrative offenses.:
1) according to part 3 of the internal affairs bodies (paragraph 1 of Part 1 of Article 804 of the Administrative Code);
2) according to parts 1 and 2 – bodies authorized to consider cases of administrative offenses under this article (part 3 of art. 804 of the Administrative Code).
They have the right to consider cases of administrative offenses provided for in Article 438 of the Administrative Code.:
1) in part 3 - judges of specialized inter-district juvenile courts (Part 2 of Article 685 of the Administrative Code);
2) according to parts 1 and 2 - chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial bodies of internal affairs, divisions of administrative, migration police, local police service of the region, the city of republican significance, the capital, their deputies;
3) according to parts 1 and 2 - heads of departments, police departments, administrative divisions, migration police, local police service of the district (city, district in the city) and their deputies;
4) according to parts 1 and 2 - the state inspector of the region, the city of republican significance, the capital, the district, the city of regional significance, the district in the city for state control in the field of fire safety (paragraph 1 of part 2 686 of the Administrative Code);
5) according to parts 1 and 2 - the state inspector of the Republic of Kazakhstan for state control in the field of fire safety, the chief state inspector of the region, the city of republican significance, the capital for state control in the field of fire safety and his deputy (paragraph 2 of Part 2 686 of the Administrative Code);
6) according to parts 1 and 2 - the chief State inspector of the Republic of Kazakhstan for state control in the field of fire safety and his deputy (paragraph 3 of Part 2 686 of the Administrative Code).
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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