Commentary to article 156-1. Violation of the legislation of the Republic of Kazakhstan on the protection of children from information harmful to their health and development  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Violation of the legislation of the Republic of Kazakhstan on the protection of children from information harmful to their health and development, committed in the form of:

     1) distribution of periodicals without an age category mark;

     2) non-compliance with the established time when distributing information products through television and radio broadcasting containing information classified in the age category "from 18 years";

     3) distribution of information products through television and radio broadcasting without indicating the age category mark or without informing the age category at the beginning of the television or radio program, as well as at each resumption after its interruption, -

     entails a warning.

     2. Distribution of audiovisual and (or) printed products without an age category mark -

     entails a warning.

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

     They impose a fine on individuals in the amount of twenty, on small businesses or non-profit organizations in the amount of fifty, on medium-sized businesses in the amount of sixty, on large businesses in the amount of two hundred monthly calculation indices.

     The commented article was first included in the Administrative Code and put into effect in accordance with the Law of the Republic of Kazakhstan dated July 2, 2018 No. 170-VI and establishes administrative liability for violation of the legislation of the Republic of Kazakhstan on the protection of children from information harmful to their health and development.  

     Simultaneously with the inclusion of new administrative offenses in the Code of Administrative Offenses provided for in the commented article, the Parliament of the Republic of Kazakhstan adopted the Law of the Republic of Kazakhstan dated July 2, 2018 No. 169-VI "On the protection of children from information harmful to their health and development", which establishes special requirements for the dissemination (including through broadcasting) of periodicals., audiovisual, printed and other information products containing information classified in the age category "from 18 years".  

     At the same time, according to Article 2 of the cited Law, its effect and the prohibitions and restrictions established by it do not apply to relations related to the dissemination of information products.: 1) containing scientific, scientific-methodical, educational, educational-methodical, statistical information; 2) related to cultural values in accordance with the legislation of the Republic of Kazakhstan on culture. Accordingly, the composition of the administrative offense provided for in the commented article does not cover cases of distribution of the above-mentioned types of information products.

     The generic object of offenses provided for in Articles 156-1 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for carrying out entrepreneurial activities in the field of culture and information in the Republic of Kazakhstan.  

     The direct object of the offenses provided for in Articles 156-1 of the Administrative Code is the procedure established and protected by the state for the dissemination of information intended for use by persons only after they reach the age of majority or another legally defined age, prohibited for distribution to minors (children) and harmful to their health and development.

     According to subclause 8) of clause 1 of Article 1 of the Code of the Republic of Kazakhstan dated December 26, 2011 No. 518-IV "On Marriage (Matrimony) and Family", a child (children) is a person who has not reached the age of eighteen (majority). A similar definition is contained in paragraph 11), paragraph 1, Article 1 of the Code of the Republic of Kazakhstan "On the health of the people and the healthcare system."

     According to paragraph 1 of Article 16 of the Law of the Republic of Kazakhstan "On Protection of children from information harmful to their health and development", information that harms the health and development of children includes:

     1) prohibited by the Constitution and laws of the Republic of Kazakhstan;

     2) prohibited for children by this Law;

     3) limited to children of certain age groups by the laws of the Republic of Kazakhstan.

     Accordingly, information prohibited for children, according to paragraph 2 of Article 16 of the said Law, includes information:

     1) encouraging children to commit acts that endanger their lives and/or health, including suicide;

     2) provoking children to antisocial and illegal actions;

     3) containing a special sexually erotic character;

     4) containing a description and/or an image of sexual violence;

     5) containing profanity;

     6) distribution of which among children is prohibited by other laws of the Republic of Kazakhstan.

     According to the imperative requirement of paragraph 3 of Article 16 of the said Law, it is not allowed to distribute information products containing information prohibited for children to minors, with the exception of information products distributed via the Internet. A special procedure is established in the legislation of the Republic of Kazakhstan for the dissemination of information on the Internet and the protection of children on the Internet from information prohibited for them.

     The subjects of offenses provided for in Article 156-1 of the Administrative Code are individuals and legal entities that distribute periodicals, printed, audiovisual and other information products in violation of the requirements of the legislation of the Republic of Kazakhstan on the protection of children from information harmful to their health and development.  

     According to clause 3) of Article 1 of the Law of the Republic of Kazakhstan "On the Protection of children from information harmful to their health and development", a distributor of information products is an individual or legal entity that distributes information products under an agreement with its owner, manufacturer of information products or on other legal grounds.

     The subjective side of the unlawful acts provided for in Articles 156-1 of the Administrative Code for individual offenders is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.  

     The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.

     The structures of administrative offenses provided for in the commented article are formal. In order to bring them to administrative responsibility, it is not necessary to establish the fact that the offender has caused material harm.  

     The offense provided for in Parts 1, 2 or 3 of the commented article is considered to have been committed at the moment when a person began distributing periodical printed, audiovisual, printed or informational products to third parties without placing a special age category mark on it, as well as in violation of the established time limits for its distribution through television and radio broadcasting, in accordance with the requirements of the legislation. RK on the protection of children from information harmful to their health and development.

     Officials of the internal affairs bodies, local executive bodies of regions, cities of republican significance, the capital, districts, cities of regional significance and the authorized body in the field of information have the right to draw up protocols on administrative offenses provided for in the commented article.  

     Part 1 of the commented article establishes administrative liability for violation of the legislation of the Republic of Kazakhstan on the protection of children from information harmful to their health and development.

     The objective side of the offense provided for in Part 1 of the commented article is characterized by the commission by a person of illegal (and for individuals, including individual entrepreneurs, also guilty) actions, expressed in the form of:

     1) distribution of periodicals without an age category mark;

     2) non-compliance with the established time when distributing information products through television and radio broadcasting, containing information classified in the age category "from 18 years";

     3) distribution of information products through television and radio broadcasting without indicating the age category mark or without informing the age category at the beginning of a television or radio program, as well as at each resumption after its interruption.

     According to Article 1 (2) of the Law of the Republic of Kazakhstan "On the Protection of Children from information harmful to their health and development", the dissemination of information products is the activity of selling, subscribing, delivering, distributing, displaying, renting and (or) renting information products.

     Accordingly, information products, according to paragraphs 1) of Article 1 of the above-mentioned Law, are understood to be products of mass media, as well as other audiovisual and (or) printed products intended for an unlimited number of people.

According to clause 11) of Article 1 of the Law of the Republic of Kazakhstan "On the Protection of children from information harmful to their health and development", the age category sign is a graphic and (or) textual designation of the age category. At the request of paragraph 1 of Article 15 of the Law of the Republic of Kazakhstan "On the protection of children from information harmful to their health and development", the age category mark is applied to information products or indicated on it by the distributor by means of an age-restricted sign in a diamond and (or) a text warning in the form of the phrase "for children over a certain age".  

     Accordingly, by virtue of the prohibition legally established in paragraph 2 of Article 15 of the cited Law, the distribution of information products without an age category mark on the territory of the Republic of Kazakhstan is not allowed, with the exception of 1) information, entertainment and sports television and radio programs broadcast live; 2) periodicals specializing in the dissemination of information of a socio-political nature; 3) news, information analysis, socio-political television programs; 4) information products distributed through radio broadcasting; 5) advertising; 6) Internet resources, except online publications.

     According to the requirement of clauses 1, 2 and 3 of Article 17 of the Law of the Republic of Kazakhstan "On the Protection of children from information harmful to their health and development", information products containing information classified in the age category "from 18 years old" are not subject to distribution through television and radio broadcasting from 6.00 a.m. to 22.00 p.m. local time, except information products distributed on a paid basis using decoding technical devices. The distribution of information products through radio broadcasting, with the exception of radio programs broadcast live, is accompanied by a message about the age category of the radio program at the beginning of its broadcast. When distributing information products through television and radio broadcasting, at the beginning of a television or radio program, as well as at each resumption after its interruption, the age category sign is indicated or the age category is indicated.

     For committing an offense under Part 1 of Article 156-1 of the Administrative Code, an administrative penalty is imposed in the form of a warning.  

     This penalty is imposed on offenders by specifying it in the decision on the imposition of an administrative penalty and its mandatory announcement, as well as handing over or sending a copy of the decision to the offender. In this case, in order to qualify further actions of the offender when committing similar offenses in the future, the person is considered to have been subjected to administrative punishment from the moment of delivery (referral) its resolution and its entry into force.  

     An administrative penalty under Part 1 of the commented article is imposed on the offender by the court.

     Part 2 of the commented article establishes administrative responsibility for the distribution of audiovisual and (or) printed products without an age category mark.  

     The objective side of the offense provided for in Part 2 of the commented article is characterized by the commission by a person of illegal (and for individuals, including individual entrepreneurs, also guilty) actions, expressed in the form of distribution of audiovisual and (or) printed products without an age category mark.  

     The concepts of "information products", "product distribution" and "age category mark" are defined in clauses 1), 2), 11) of Articles 1 and 15 of the Law of the Republic of Kazakhstan "On the Protection of Children from information harmful to their health and development".

     For committing an offense under Part 2 of Article 156-1 of the Administrative Code, an administrative penalty is imposed in the form of a warning.  

     This penalty is imposed on offenders by specifying it in the decision on the imposition of an administrative penalty and its mandatory announcement, as well as handing over or sending a copy of the decision to the offender. In this case, in order to qualify further actions of the offender when committing similar offenses in the future, the person is considered to have been subjected to administrative punishment from the moment of delivery (referral) its resolution and its entry into force.

     An administrative penalty under Part 2 of the commented article is imposed on the offender by the court.

     Part 3 of the commented article establishes a more severe penalty for repeated commission of any of the acts provided for in parts 1 or 2 of the commented article within a year after the imposition of an administrative penalty.  

     At the same time, the object, the subjective side, and the subjects of the offense provided for in Part 3 of the commented article coincide in their characteristics with the object, the subjective side, and the subjects of any of the offenses provided for in Parts 1 or 2 of Article 156-1 of the Administrative Code.  

     In the description of the objective side of the offense provided for in Part 3 of Article 156-1 of the Administrative Code, a sign of repetition is added to any of the acts provided for in parts 1 or 2 of the commented article.  

     An offense is considered to have been committed repeatedly if a person has previously committed any of the acts provided for in Parts 1 or 2 of Article 156-1 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.

     The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 3 of art. 156-1 of the Administrative Code.  

     Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing any of the offenses provided for in Parts 1 or 2 of Article 156-1 of the Administrative Code, the existence of an effective and unaltered resolution of the authorized state body. or the court on the imposition of an administrative penalty under Part 1 or 2 of art. 156-1 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.

     If a person has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under parts 1 or 2 of Article 156-1 of the Administrative Code, then bringing him to responsibility under Part 3 of Article 156-1 of the Administrative Code is impossible, since there is no qualifying sign of repetition.. In this case, the person must be brought to administrative responsibility and punished under Part 1 or Part 2 of art. 156-1 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.  

     For repeated commission of any of the acts provided for in Parts 1 or 2 of Article 156-1 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.

     The amount of the fine for committing an offense provided for in Part 3 of Article 156-1 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.  

     Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:  

     - for individuals – 20 MCI,  

     - for small businesses or non–profit organizations - 50 MCI,  

     - for medium–sized businesses - 60 MCI,  

     - for large business entities – 200 MCI.

     The amounts of fines are fixed and are not subject to change by the body imposing them.  

     An administrative penalty under Part 3 of the commented article is imposed on the offender by the court, since the consideration of the case provided for in the commented article, at the request of part 1 of Article 684 of the Administrative Code, is carried out in court.  

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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