Commentary to article 488. Violation of the legislation of the Republic of Kazakhstan on the organization and conduct of peaceful assemblies, rallies, marches, pickets and demonstrations The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the legislation of the Republic of Kazakhstan on the procedure for organizing or holding an assembly, rally, march, picket, demonstration or other public event, or obstruction of their organization or holding, as well as participation in illegal meetings, rallies, marches, demonstrations or other public event, if these actions do not have signs of a criminally punishable act, -
they entail a warning or a fine in the amount of twenty monthly calculation indices or arrest for up to ten days.
2. The provision by heads and other officials of organizations to participants of an unauthorized meeting, rally, picketing, demonstration or other public event of premises or other property (communications, multiplying equipment, equipment, transport) or the creation of other conditions for the organization and conduct of such events -
entails a fine in the amount of twenty monthly calculation indices.
3. The actions provided for in parts one and two of this Article, committed repeatedly within a year after the application of administrative penalties, or by the organizer of an assembly, meeting, march, demonstration, -
they entail a fine in the amount of fifty monthly calculation indices or administrative arrest for up to fifteen days.
The object of the administrative offense being commented on is the established management procedure in the field of compliance with the legislation of the Republic of Kazakhstan on the organization and conduct of peaceful assemblies, rallies, marches, pickets and demonstrations.
The subject of the offense is public events listed in the content of the article.
Unfortunately, the legislation does not define public events, which negatively affects the practical qualification of offenses in the field of public relations under study.
The objective side of Part 1 of the article under consideration is characterized by three illegal actions (omissions) in the form of:
1) violation of the legislation of the Republic of Kazakhstan on the procedure for organizing or holding an assembly, rally, march, picket, demonstration or other public event;
2) obstruction of an assembly, rally, march, picket, demonstration or other public event
3) participation in illegal meetings, rallies, marches, demonstrations or other public events.
A prerequisite for the qualification of an administrative offense is the absence of signs of a criminally punishable act.
In accordance with article 1 of the Law of the Republic of Kazakhstan "On the procedure for Organizing and Holding Peaceful Assemblies, Rallies, Marches, Pickets and Demonstrations in the Republic of Kazakhstan" dated March 17, 1995, forms of expression of public, group or personal interests and protest, referred to in legislation as assemblies, rallies, marches and demonstrations, should also be understood as hunger strikes in the Republic of Kazakhstan. public places, the construction of yurts, tents, and other structures, and picketing.
The organizers and participants of the event are prohibited from:
- obstruct the movement of vehicles and pedestrians;
- to interfere with the uninterrupted functioning of the infrastructure of the settlement;
- to install yurts, tents, and other temporary structures without coordination with the local executive authorities of the city of republican significance, the capital, or the district (city of regional significance);
- damage green spaces, small architectural forms;
- carry cold steel, firearms and other weapons, as well as specially prepared or adapted objects that can be used against human life and health, to cause material damage to citizens and property of legal entities;
- to interfere in any form in the activities of representatives of state bodies that ensure public order during events.
Paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 explains some of the features of the application of the norm under study. The procedure for exercising and conditions for limiting this right are established by the Law of the Republic of Kazakhstan dated March 17, 1995 No. 2126 "On the Procedure for Organizing and Holding Peaceful Assemblies, Rallies, Marches, Pickets and Demonstrations in the Republic of Kazakhstan", Article 8, which stipulates that assemblies, rallies, marches, pickets and demonstrations must be unconditionally terminated upon at the request of a representative of the local executive body of a city of republican significance, the capital, or a district (city of regional significance), if: an application has not been submitted, a decision has been taken to ban it, or the procedure for conducting them has been violated, provided for in articles 4, 5 and 7 of the above-mentioned Law, as well as in case of danger to the life and health of citizens, violation of public order.
The administrative liability provided for in the first part of Article 488 of the Administrative Code of participants in such a public event, who are not organizers, for participating in illegal meetings, rallies, marches, demonstrations or other public event occurs after failure to comply with the above requirements of a representative of the local executive body. Therefore, when considering cases of administrative offenses under Article 488 of the Administrative Code, courts need to examine evidence of the actual statement of such a claim, its validity and legality, as well as its non-fulfillment by a participant in a public event against whom proceedings on an administrative offense are underway. Arguments about the violation of the principle of proportionality by demanding the cessation of a rally may be considered later in civil proceedings, but at the time of such a request by a representative of the local executive body, his competence is not subject to dispute.
A competing norm of criminal codified legislation is the criminal offense provided for in article 400 of the Criminal Code "Violation of the procedure for organizing and holding meetings, rallies, pickets, street processions and demonstrations." The qualifying signs of a criminally punishable act are expressed as:
1)organizing, holding, or participating in an illegal assembly, rally, march, picket, demonstration, or other illegal public event
2) assistance in organizing or conducting such events by providing premises, communications facilities, equipment, and transport if these acts have caused significant harm to the rights and legitimate interests of citizens or organizations, or to the legally protected interests of society or the State.
The subject of an administrative offense provided for in Part 1 of Article 488 of the Administrative Code is sane individuals who have reached the age of sixteen by the time the administrative offense ends or is suppressed (Article 28 of the Administrative Code)
The objective side of the 2nd part of the commented article is characterized by illegal actions in the form of:
1) provision by heads and other officials of organizations of premises or other property (communications equipment, multiplying equipment, equipment, transport) to participants of an unauthorized meeting, rally, picketing, demonstration or other public event;
2) creation by the persons mentioned above of other conditions for the organization and holding of such events.
The concept of creating "other conditions" for organizing an unauthorized event should be understood as similar illegal acts for the purpose of organizing or holding such events. For example, by providing public buildings, streets and squares to the participants of the event and their organizations, widespread dissemination of information, and the possibility of using print media, television, and radio.
The subjects of the administrative offense provided for in Part 2 of Article 488 of the Administrative Code are indicated in the disposition of this norm, which are the heads and other officials of organizations participating in an unauthorized meeting, rally, picketing, demonstration or other public event.
The objective side of Part 3 of the article under study is characterized by illegal actions provided for in parts one and two of this article, committed repeatedly within a year after the application of administrative penalties or by the organizer of an assembly, rally, march, demonstration.
Paragraph 16 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 7 clarifies some features of the qualification of an offense under Part 3 of Article 488 of the Administrative Code. Prior to obtaining permission to hold a mass event, its organizer, as well as other persons, may not announce in the mass media, the Internet or other information networks the date, place and time of its holding, produce and distribute leaflets, posters and other similar materials for this purpose. Violation of this requirement entails liability of the organizer under part three of Article 488 of the Administrative Code for violating the procedure for organizing a public event.
The subjects of the administrative offense provided for in Part 3 of Article 488 of the Administrative Code are indicated in the comments to parts 1 and 2 of this article.
The subjective side of all parts of the article under consideration can be expressed either in the form of direct intent or by negligence.
Judges of specialized district and equivalent administrative courts have the right to consider cases of administrative offenses provided for in the article under study (art. 684 of the Administrative Code).
Authorized officials have the right to draw up protocols on administrative offenses provided for in the Administrative Code.
1)internal affairs bodies (paragraph 1 of Part 1 of Article 804 of the Administrative Code);
2) military police bodies of the Armed Forces of the Republic of Kazakhstan on offenses committed by military personnel, conscripts, conscripts, and persons driving vehicles of the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan (paragraph 4, Part 1, Article 804 of the Administrative Code);
3) the State security service of the Republic of Kazakhstan during security measures (paragraph 46, part 1, Article 804 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.);
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: 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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