Speech by Zhandos Umiraliev, Deputy General Prosecutor of the Republic of Kazakhstan, at the session of the Central Election Commission of the Republic of Kazakhstan dated 17 March 2023.
Today, at 24:00 hours the stage of election campaigning ends. Tomorrow, on March 18, and on March 19, the day of voting, any agitation is prohibited (Article 32 of the Constitutional Law On Elections in the Republic of Kazakhstan).
Starting from March 14 it is also forbidden to publish in mass media the results of polls, forecasts of election results, other researches related to elections, and voting in support of candidates.
It is not allowed to conduct such polls in the voting room or point (point 9 of Article 28 of the Constitutional Law On Elections in the Republic of Kazakhstan).
They can be conducted only at the exits of polling stations by registered legal entities that have notified the Central Election Commission in writing.
The results of such polls are allowed to be published in mass media only after the voting day, i.e. from 00:00 o'clock on March 2023.
Non-compliance with the mentioned requirements of the Constitutional Law leads to liability according to Articles 102 and 120 of the Code of Administrative Violations.
These legal requirements relate both to extraordinary elections of deputies of the Mazhilis of the Parliament and deputies of maslikhats of all levels.
A special role in observance of election legislation is assigned to members of election commissions.
The law provides for their responsibility for:
- violation of citizens' rights to get acquainted with the voter's list or to make changes to it after the beginning of vote counting;
- issuing voting ballots to citizens in order to provide them with an opportunity to vote for other persons
- Failure to submit information on the results of voting.
This entails administrative liability (Article 106 - a warning or a fine of 30 MCIs, Article 121 - a fine of 25 MCIs, Article 110 - a fine of 25 MCIs, Article 119 - a fine of 25 MCIs).
Criminal liability is applied when committing acts stipulated by articles 150 (obstruction of voting rights - a fine from 100 MCIs to imprisonment up to 4 years) and 151 (falsification of electoral documents or incorrect vote count - up to 4 years of imprisonment) of the Criminal Code.
Another category of electoral process participants, on which the openness and transparency of elections also depends, are observers of political parties, other accredited public associations, non-profit organizations of Kazakhstan, candidate proxies.
Their activities, rights and obligations are regulated by the Constitutional Law (Articles 20-1, 20-2, 31).
They are obliged to have documents certifying their identity and powers, and foreign observers - documents certifying their identity and accreditation.
They must not interfere in the electoral process, in the procedure of vote counting, decision-making by the election commission. In general, they are obliged not to take actions that interfere with the work of the election commission.
Must comply with the requirements of the Chairman of a particular election commission to comply with the rules of conduct at the polling station.
At the same time, observers and proxies have the right to make photo, audio and video recordings without interfering with the course of voting and summarizing the results.
However, the exercise of this right may not infringe upon human rights and freedoms guaranteed by the Constitution and the principle of secrecy of the vote.
No one has the right to use an image of a person without his consent (Article 145 of the Civil Code).
Thus, photo, audio and video recording and observation can be carried out only with regard to protecting the secrecy of voting, the voter's list and their personal data.
Their violation is subject to administrative sanction under Article 79 of the CAO (violation of the legislation on personal data) or criminal sanction under Article 147 of the CC (violation of privacy and personal data), if substantial harm has been caused.
In the case of violation of the current legislation by observers, the corresponding election commission has the right to cancel the registration of the observer and expel him from the premises.
If violations are committed by a foreign observer, the Central Election Commission, upon submission of the corresponding election commission, has the right to revoke his accreditation.
It is certain that observers and proxies shall exercise their rights without violating the law.
As you know, on February 18 of this year on the site of CEC and in mass media, as well as by prosecutor's offices of regions the responsibility for violation of procedures and conditions of pre-election agitation was clarified.
At the same time, the norms of election legislation were violated during the elections to Mazhilis.
We have recorded 23 such facts.
We have a single approach to all offenders.
Each fact is checked. The perpetrators incurred administrative penalties.
Most of all for agitation in the period of its prohibition. There were 12 such facts.
In 6 of them the offenders were three legal entities and three citizens. Not candidates.
In the other 6 cases illegal campaigning, namely before the deadline for registration of candidates (before 18:00 p.m. on 18 February) was held by the candidates for deputies to Mazhilis.
They were registered in single-mandate constituencies.
We received the consent of CEC to involve them.
After the court imposed a fine under Article 102 of the CAO and the judicial acts came into legal force, the corresponding district election commissions (subparagraph 3 of paragraph 4-3 of Article 89 of the Constitutional Law On Elections in the Republic of Kazakhstan) cancelled their registration.
This is a requirement of the law.
Another candidate in Almaty city was prosecuted under Article 122 of the CAO. He violated the conditions of election campaigning and provided free cab services to citizens. He admitted his guilt, and his registration was also cancelled.
During the period of campaigning 2 residents of Karaganda were fined under article 114 of the CAO for disruption and damage of campaign materials.
They confessed to the offense and were fined in a reduced amount, i.e. 50% of the maximum fine (15 MCI). This is allowed by the Code of Administrative Offences.
3 facts are related to the conduct of illegal opinion polls on elections (Astana-1 and Almaty-2).
According to the law, only legal entities with 5 years of experience in this sphere and having notified the CEC in advance have the right to conduct them.
But, 2 times the polls were conducted by physical persons and one fact was noted for a legal person who had no experience and did not notify the CEC.
All these polls were conducted in social networks.
For distribution of anonymous agitation materials (without output data, place of production, circulation, which funds were used to pay) 4 persons were brought to responsibility under Article 113 of the Code of Administrative Offences, 3 of them were representatives of the candidate from Akmola region and 1 was a representative of mass media.
We have received the consent of CEC to bring a candidate for deputies to Mailis from Turkestan Region for the same violation (Article 113 of CAO).
This does not entail cancellation of registration of a candidate.
Starting from 17 March, i.e. 2 days before voting, cancellation of decision on registration or restoration of a previously de-registered candidate is not allowed (p.4 p.4-3 Article 89 of the Constitutional Law "On Elections in the RK").
As for the extraordinary elections of deputies to maslikhats, prosecutors found 11 violations.
They are similar to the elections of deputies to mazhilis.
Penalties were imposed on 6 citizens for damaging campaign materials of candidates for deputies of the maslikhats under Article 114 of the Administrative Code.
In Almaty, the chairman of the CSC allowed one candidate for deputy of the city Maslikhat to place campaign materials in the entrances of serviced houses, and forbade the other.
This prevented this candidate from campaigning and he was punished under Article 103 of the Code of Administrative Offences.
In early March of this year, a resident of Karaganda region, as a member of election commission, was seen distributing campaign materials of a candidate for deputy to the district maslikhat.
This is prohibited by law and she was fined under Part 1 of Article 122 of the Administrative Code (violation of the conditions of election campaigning).
He provided free of charge service on laying of sand-gravel mixture, the court fined him 20 MP under part 2 of article 122 of the Administrative Code.
Another candidate for deputy of Maslikhat in North Kazakhstan region was prosecuted under Article 113 of the CAO for distribution of anonymous campaign materials (without output data, place of production, circulation, from which funds were paid). The candidate admitted his guilt, in connection with which a fine of 12.5 MCIs was imposed on him in an abbreviated order.
In Atyrau, the local newspaper published campaign materials of 2 candidates for deputies to the oblast Maslikhat.
But this media outlet did not provide information to the relevant election commission about the amount of payment, conditions and procedure of providing print space, which is a violation of Item 3 of Article 28 of the Constitutional Law On Elections in the Republic of Kazakhstan.
The owner of a print publication that had admitted the violation was charged a fine (25 MCI) under Part 5, Article 112 of the Code of Administrative Offences, in an abbreviated procedure.
In this regard, I ask all participants in the electoral process to strictly observe the law and prevent violations.
We continue the supreme supervision over the observance of legality of the electoral process.