Comment to article 440. Drinking alcoholic beverages or appearing in public places while intoxicated  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Drinking alcoholic beverages on the streets and in other public places, except for trade and catering organizations where the sale of alcoholic beverages on tap is permitted by a local executive body, or appearing in public places in a state of intoxication that offends human dignity and public morality, -

     entails a fine in the amount of five monthly calculation indices.

     2. The appearance of persons under the age of eighteen in public places in a state of intoxication, as well as their drinking of alcoholic beverages, entail a fine on parents or persons replacing them in the amount of five monthly calculation indices.

     3. The actions provided for in the first and second parts of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

     they entail a fine in the amount of ten monthly calculation indices.

     4. The actions provided for in the first and second parts of this article, committed by a person who has been subjected to administrative penalties twice during the year for drinking alcoholic beverages or appearing in public places in a state of intoxication, -

     they entail administrative arrest for up to five days.

     5. The actions provided for in part four of this Article, committed by persons to whom administrative arrest in accordance with part two of Article 50 of this Code does not apply, -

     they entail a fine in the amount of fifteen monthly calculation indices.

     The object of the offense is public order and morality. The optional object of the offense will be health, and even people's lives. For example, in practice, cases of frostbite often occur with drunk people in severe frosts, or pose another threat to their health and others.

     The objective side of Part 1 of the commented article is characterized by two qualifying features:

     1) drinking alcoholic beverages on the streets and in other public places, except for trade and catering organizations where the sale of alcoholic beverages on tap is permitted by the local executive body;

     2) insulting human dignity and public morals in a public place due to the consumption of alcoholic beverages.

     Previously, drinking alcohol, not alcoholic beverages, was considered a punishable offense. Alcoholic beverages are beverages containing ethanol (ethyl alcohol, alcohol).

     The peculiarity of the objective side of the offense in question is that a person is in a public place not just drunk, but insulting to human dignity and public morality, in particular, if the behavior of a person in a state of intoxication clearly violates generally accepted norms (obscene statements or gestures, rude shouts, untidy appearance, inability to navigate, etc.).

     According to the Law of the Republic of Kazakhstan dated July 16, 1999 "On State regulation of the production and turnover of ethyl alcohol and alcoholic products", alcoholic products should be understood as food products with a volume fraction of ethyl alcohol of more than one and a half percent, produced using ethyl alcohol from food raw materials and (or) alcohol-containing food products, with the exception of alcohol-containing medical products, registered as a medicinal product in accordance with the legislation of the Republic of Kazakhstan in the field of healthcare.

     The concept of alcoholic products is much broader than alcoholic beverages and, in addition to beer, wine, vodka, cognac, liqueur and other wine materials, includes:

     1) food products of animal origin (including koumiss, kefir, ayran, shubat), as well as kvass obtained by alcoholic fermentation and soft drinks prepared using alcoholic infusions, herbs and wine materials;

     2) alcohol-containing non-food products (medicines, detergents and disinfectants, paint and perfume and cosmetic products, other goods).

     That is, the use of alcoholic beverages in public places will constitute an offense only in cases where they are alcoholic beverages. Drinking non-alcoholic beer or champagne in a public place is also not an offense, although it may be perceived by others as an alcoholic drink.

     When determining a public place, one should follow the order of the Prosecutor General of the Republic of Kazakhstan dated September 19, 2014 No. 89 "On Approval of the Rules for Receiving and Registering applications and reports of criminal offenses, as well as maintaining a Unified Register of pre-trial investigations", which defines a public place.

     A public place is a specially equipped public place within or outside cities and towns, intended for use by the public, as well as for holding mass events, servicing and recreation of citizens.

     Further, the Rules contain a list of public places.:

     1) organization of education and recreation;

     2) Healthcare organizations;

     3) catering establishments;

     4) cinemas, theaters, circuses, concert, viewing and exhibition halls, sports arenas and other indoor facilities intended for mass recreation, including nightclubs and discos;

     5) Museums, libraries and lecture halls;

     6) local and long-distance trains, air, sea and river transport vessels, salons of urban and intercity buses, fixed-route taxis and urban electric transport;

     7) buildings of airports, railway, automobile and water stations, platforms of railway stations and subways;

     8) premises of government agencies and organizations that do not use access control;

     9) premises that are workplaces at facilities with access control, used by workers' collectives to work in cases of hooliganism;

     10) entrances of houses.

     That is, if drinking alcoholic beverages is carried out outside specially equipped public areas, despite the presence of unauthorized citizens present in this place, such actions should not be recognized as offenses committed in public places.  

     The above-mentioned Rules list such places that will not be counted as offenses committed in a public place.:

     1)public facilities that are not performing their functions at the time of the offense;

     2)facilities with access control, used by labor collectives for work and guarded parking lots;

     3) utility rooms of closets of organizations, institutions, commercial and entertainment establishments, including locker rooms of gyms of educational and other institutions;

     4) taxi;

     5) territories of abandoned buildings, regardless of the presence of fencing, underground utilities, undeveloped areas - wastelands, river banks, except for embankments of streets and the beach, sections of highway without any infrastructure facilities;

     6) common areas in communal apartments, attics, basements, elevators, except for hooliganism.

     In the practice of law enforcement agencies, there is a problem of proving the guilt of offenders. A reasonable question arises: "Is it necessary to conduct a medical examination under this article?". To determine the guilt of an offender on the basis of "drinking alcoholic beverages", the stage of open preparation is sufficient in order to consume alcoholic or other intoxicating substances in a public place. The degree of intoxication of the offender(s) does not matter when qualified under Part 1 of Article 440 of the Administrative Code. Therefore, it makes no sense to conduct a medical examination of offenders on the first qualifying basis.  

     Based on paragraph 13 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 "... administrative responsibility for appearing in public places in a state of intoxication that offends human dignity and public morality occurs both with alcoholic, narcotic or substance intoxication."

     The subjective side of part 1 of the commented article is characterized by the guilt, motive and purpose of the administrative offense. The appearance in a public place in a state of intoxication that offends human dignity and public morality is determined by the behavior of the offender, expressed in certain actions that offend human dignity and public morality, and the offender must be in a state of intoxication (alcoholic or narcotic). That is, two facts are subject to proof at the same time: illegal (improper) the behavior and physical condition of the offender. The testimony of witnesses or witnesses is sufficient to determine the informal behavior of the offender, insulting human dignity and public morality, which must necessarily be the result of the use of alcoholic beverages or narcotic and other intoxicating substances.

According to M.A. Kyzylov, S.V. Korneychuk, O.S. Savitskaya, the disposition of the commented article does not contain a clear concept of illegal (non-ethical) actions of the offender, by which he offends human dignity and public morality, granting this right to persons ensuring public order. In Kazakhstan, there is no "prohibition" prohibiting the consumption of alcoholic beverages and appearing drunk in public places. The legislation does not provide a concept and a specific list of illegal actions that constitute the behavior of citizens who offend human dignity and public morality.

     The subject of an offense under part 1 of Article 440 of the Administrative Code is only individuals who have reached the age of 18 at the time of the offense. If illegal actions are committed by a minor, then it is necessary to qualify such actions according to part 2 of Article 440 of the Administrative Code.

     The objective side of the second 2 of the article contains two qualifying features:

     1) appearance in public places in a state of intoxication of persons under the age of eighteen;

     2) drinking alcoholic beverages by minors.

     Based on paragraph 13 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 "... administrative responsibility for drinking alcoholic beverages by persons under the age of eighteen comes for committing such actions, both in public and in any other place."  

     When qualifying for the first offense, the following questions should be clarified::

     1)where did the minor purchase alcoholic beverages?

     2) who brought the minor to a state of intoxication?

     After establishing such facts, it is necessary to resolve the issues of initiating proceedings on administrative offenses under Articles 128 "Involving a minor in committing an administrative offense", 131 "Bringing a minor to a state of intoxication", 200 "Violation of the requirements of the legislation of the Republic of Kazakhstan on the sale of alcoholic beverages".

     The first qualifying feature of Part 2 of Article 440 of the Administrative Code covers any type and degree of intoxication of a minor. Intoxication is a special condition of the nervous system due to alcohol or drugs intake.

     If the fact that a minor uses alcohol, narcotic drugs or psychotropic substances was the result of non-fulfillment or improper fulfillment without valid reasons of the duties of raising a minor by a parent or a person replacing him, then such offenses should be qualified under Article 140 of the Criminal Code "Failure to fulfill the duties of raising a minor." That is, if a minor has consumed alcohol or drugs at home, this is a criminal offense, and if the minor goes out into a public place after that, then the parents should also be brought to administrative responsibility under Article 440 of the Administrative Code.  

     The subject of an offense under Part 2 is a person who has not reached the age of eighteen, but an administrative penalty should be imposed on the parents or persons replacing them.  

     The subjective side of part 2 of the composition of the commented offense is the guilt of the parents or other legal representatives of the minor in the form of direct or indirect intent. Moreover, this is not "someone else's" fault, i.e. the minor's, but the fault and administrative responsibility of his parents or other legal representatives for failing to fulfill their duties to properly monitor the behavior of minors who have consumed alcoholic beverages.

     The third 3 articles contain one qualifying feature of "repetition", which covers all the illegal actions listed in parts 1 and 2 of the commented article, committed within a year after the imposition of the last administrative penalty.

     Based on paragraph 13 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7, "The one-year period established by part three of the same Article should be calculated from the date of entry into force of the previous resolution imposing an administrative penalty under part one or two of Article 440 of the Administrative Code. In order to qualify the same actions under part four of this article, it is necessary that a person be held administratively liable twice earlier in the year under this article, and for both decisions the time limit set by Article 61 of the Administrative Code has not expired."

     The objective side of part 4 of the article in question provides for systematic (two or more times) actions provided for in parts one and two of this article. An obligatory condition for the objective side of the offense is the facts of the issuance of two rulings on the imposition of administrative penalties against the offender for drinking alcoholic beverages or appearing in public places in a state of intoxication that dishonors human dignity and public morality.

     The subjects of the offense under parts 3 and 4 of Article 440 of the Administrative Code are similar to the offenders listed in the first two parts of this article.

     The subjective side of Parts 3 and 4 is characterized by both direct and indirect intent.

     The composition of the offense provided for in Part 5 of the analyzed article fully coincides with Part 4 of Article 440 of the Administrative Code, but since the sanction of Part 4 of the article does not contain an alternative punishment to administrative arrest, Part 5 provides for the special feature of bringing to justice persons to whom administrative arrest in accordance with part two of Article 50 of this Code does not apply. Such persons are:

     1) pregnant women;

     2) women with children under the age of fourteen;

     3) persons under the age of eighteen;

     4) disabled people of groups 1 and 2;

     5) women over the age of fifty-eight;

     6) men over the age of sixty-three;

     7) men who raise children under the age of fourteen alone (art. 50);

     8) persons specified in Article 32 of the Administrative Code, as well as other persons granted immunity to administrative responsibility.

     They have the right to initiate proceedings under the commented article and impose an administrative penalty.:

     1) according to Parts 1,2 and 3 of Articles - 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, the city of republican significance, the capital, their deputies (paragraph 1, part 2, Article 685 of the Administrative Code);

     2) according to Parts 1,2 and 3 of Articles, 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 internal affairs bodies and 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 are also entitled to initiate proceedings under all parts of Article 440 of the Administrative Code (part five of Article 804 of the Administrative Code).

     I have the right to impose administrative penalties under Parts 4 and 5 of Article 440 of the Administrative Code:

     Judges of specialized district and equivalent administrative courts (Part 1 of Article 684 of the Administrative Code);

     Judges of specialized inter-district juvenile courts (paragraph 1, part 2, Article 684 of the Administrative Code).

     On the basis of part 3 of Article 812 of the Administrative Code, cases of administrative offenses provided for in Article 440 of the Administrative Code are considered at the place of their commission or at the place of residence of the person against whom proceedings on an administrative offense are being conducted.

     According to the Law of the Republic of Kazakhstan dated July 9, 2004 No. 591, minors who abuse alcoholic beverages, narcotic drugs, psychotropic and other potent substances that have a negative effect on mental and physical functions and human behavior must be registered with the Department of Internal Affairs and health authorities. In relation to such minors, individual preventive measures provided for in the legislation on the prevention of offenses should be implemented.

     When considering a case of an administrative offense provided for in Articles 4 and 5 of the Administrative Code, at the request of participants in the proceedings on an administrative offense and (or) internal affairs bodies, the court may establish special requirements for the behavior of a person who has committed an administrative offense provided for in the commented article. (See: comments to art. 54 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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