Comment to Article 101. Failure by officials to provide the necessary information and materials to the election commission (Republican referendum commission) or failure to comply with the commission's decisions  The Code of the Republic of Kazakhstan on Administrative Offences  

    Chapter 11. ADMINISTRATIVE OFFENSES INFRINGING ON ELECTORAL RIGHTS (THE RIGHT TO PARTICIPATE IN A NATIONAL REFERENDUM)  

     The special part of the Code of Administrative Offences of the Republic of Kazakhstan begins with the chapter on administrative offences infringing on electoral rights (the right to participate in a national referendum).  

     This is due to the special attitude of the legislator to the protection of the constitutional right of a citizen to participate in the management of state affairs. Thus, paragraphs 1 and 2 of Article 33 of the Constitution of the Republic of Kazakhstan stipulates that citizens of the Republic of Kazakhstan have the right to participate in the management of state affairs directly and through their representatives, to apply personally, as well as to send individual and collective appeals to state and local government bodies.

     Citizens of the Republic have the right to elect and be elected to state and local government bodies, as well as to participate in a national referendum.

     The application of the articles contained in Chapter 11 of the Administrative Code is strictly limited in time, since the elections of the president, deputies of Parliament and local representative bodies take place at certain intervals. Therefore, the application of the articles of Chapter 11 is possible only during the period of elections or a national referendum.  

     For example, according to the Newsletter of the Central Election Commission of the Republic of Kazakhstan, three election campaigns were conducted in the country in 2016:  

     1. Early elections of deputies of the Mazhilis of the Parliament of the Republic of Kazakhstan and regular elections of deputies of maslikhats of the Republic of Kazakhstan (March 20, 2016);  

     2. Elections of deputies of maslikhats of the Republic of Kazakhstan to replace those who resigned (March 20, 2016);  

     3. Elections of akims of cities of regional significance, rural districts, towns and villages of the Republic of Kazakhstan that are not part of the rural district, instead of those who left (during 2016).  

     In 2017, 4 election campaigns are conducted in the Republic of Kazakhstan in accordance with the legislation.:  

     1) On March 26, 2017, elections of maslikhat deputies were held in 12 regions to replace those who had left in 57 electoral districts. According to the results of the voting, 57 deputies of the maslikhats of the republic were elected, including 12 deputies of regional, 9 deputies of city and 36 deputies of district maslikhats.  

     2) On June 28, 2017, regular elections of deputies of the Senate of the Parliament of the Republic of Kazakhstan were held instead of those elected on August 19, 2011. Following the results of these elections, 16 deputies from sixteen regions of the republic were elected to the upper house of the country's highest legislative body: one deputy from each of the 14 regions, as well as from the cities of Astana and Almaty.

     3) In August 2017, elections were held for 1,414 akims of cities of regional significance, rural districts, towns and villages of the Republic of Kazakhstan that are not part of the rural district instead of akims whose 4-year term of office has expired.

     4) On October 29, 2017, regular elections of deputies of maslikhats were held instead of those who had left.

     The disposition of the articles of Chapter 11 of the Administrative Code is mainly of a blank nature, since it refers the law enforcement officer to the Constitutional Law of the Republic of Kazakhstan dated September 28, 1995 No. 2464 "On Elections in the Republic of Kazakhstan" and other regulatory legal acts ("Rules for conducting election campaigning through the media and information support for the elections of the President of the Republic of Kazakhstan, deputies of Parliament, maslikhats of the Republic Kazakhstan, as well as members of other local self-government bodies", approved by Resolution No. 90/178 of the Central Election Commission of the Republic of Kazakhstan dated June 25, 2007, "Rules for the formation of voter lists for voting, as well as their submission to election commissions", approved by Resolution No. 11/197 of the Central Election Commission of the Republic of Kazakhstan dated August 23, 2018, "Rules for opening a special temporary account and Spending Election Fund Funds, approved by Resolution of the Central Election Commission of the Republic of Kazakhstan. No. 19/222 of the Election Commission of the Republic of Kazakhstan dated August 7, 1999, "Instructions for equipping a voting room at a polling station, voting point", approved by Resolution of the Central Election Commission of the Republic of Kazakhstan dated October 23, 2012 No. 21/183, "Instructions for registration of authorized persons", approved by Resolution of the Central Election Commission of the Republic of Kazakhstan dated November 21, 2011 No. 62/108, etc.  

     An important aspect of the application of articles of Chapter 11 of the Administrative Code is the need to refer to international agreements to which the Republic of Kazakhstan is a party. These international documents also contain standards for the conduct of elections and referendums (the International Covenant on Civil and Political Rights, signed in New York on December 16, 1966, the Convention on Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States, signed in Chisinau on October 7, 2002, etc.).

     Basically, the subject of administrative offenses contained in Chapter 11 of the Administrative Code is a special subject: a candidate for deputy or other elected position, his spouse, a member of the election commission, a political party, a journalist, etc.

     Judges of specialized district and equivalent administrative courts consider cases of administrative offenses provided for in Chapter 11 of the Administrative Code, which confirms the special importance of the state for the protection of citizens' electoral rights and the right to participate in a national referendum.  

     Article 101. Failure by officials to provide the necessary information and materials to the election commission (Republican referendum commission) or failure to comply with the commission's decisions

     Failure by officials to provide information and materials to the election commission (republican referendum commission) on the presence or absence of a candidate's criminal record that has not been extinguished or removed in accordance with the procedure established by law; on the candidate's guilt in committing a corruption crime and an offense recognized by a court in accordance with the procedure established by law; on the candidate's citizenship; on the reliability of information on income and property declared by the candidate or his (her) spouse; about the voter lists for each polling station or their failure to comply with the commission's decision taken within its authority, –

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

     The general object of the offense is the established procedure for ensuring the constitutional rights of citizens.

     The generic object of this offense is the social and legal relations that arise when observing the working procedure of election commissions (referendum commissions).

     In accordance with paragraph 2 of Article 33 of the Constitution of the Republic of Kazakhstan, "citizens of the Republic have the right to elect and be elected to state and local government bodies, as well as to participate in a national referendum."  

     In other words, only citizens of the Republic of Kazakhstan who have reached the appropriate age are entitled to vote. According to paragraph 1 of Article 1 of the Law of the Republic of Kazakhstan dated December 20, 1991 1017-XII "On Citizenship of the Republic of Kazakhstan", "citizenship of the Republic of Kazakhstan defines a stable political and legal relationship of a person with the state, expressing the totality of their mutual rights and obligations".  

     In accordance with Article 4 of the mentioned Law, "the document confirming the citizenship of the Republic of Kazakhstan is an identity card or passport of a citizen of the Republic of Kazakhstan. The citizenship of a child under the age of 16 is confirmed by his birth certificate, passport of either parent".  

     According to paragraph 2 of Article 33 of the Constitution of the Republic of Kazakhstan, "citizens who have been declared legally incompetent by a court, as well as those held in places of imprisonment by a court verdict, do not have the right to vote and be elected, participate in a national referendum."  

     Paragraph 4 of Article 4 of the Constitutional Law of the Republic of Kazakhstan dated September 28, 1995 No. 2464 "On Elections in the Republic of Kazakhstan" (hereinafter referred to as the Constitutional Law) states that "one cannot be a candidate for President of the Republic of Kazakhstan, for deputies of the Parliament of the Republic of Kazakhstan, including on party lists, maslikhats, as well as a candidate for members of another local government body:

     1) a person who has a criminal record that has not been expunged or removed in accordance with the procedure established by law;

     2) a person whose guilt in committing a corruption offense and a corruption offense has been recognized by a court in accordance with the procedure established by law."

     Paragraph 2 of Article 59 of the above-mentioned Constitutional Law stipulates that "before registration, a candidate and his (her) spouse shall submit income and property declarations to the state revenue authorities at their place of residence on the first day of the month of the beginning of the nomination period established in accordance with this Constitutional Law, in accordance with the procedure and form established by the authorized body the state body of the Republic of Kazakhstan responsible for ensuring tax revenues and other mandatory payments to the budget."

     According to paragraph 2, paragraph 2, Article 73 of the Constitutional Law, "before registration, a candidate and his (her) spouse shall submit income and property declarations to the state revenue authorities at their place of residence on the first day of the month of the beginning of the nomination period established in accordance with this Constitutional Law, in accordance with the procedure and form established by the authorized state the body of the Republic of Kazakhstan responsible for ensuring tax revenues and other mandatory payments to the budget."

In accordance with paragraph 1, paragraph 2, Article 89 of the Constitutional Law, "before registration, a candidate and his (her) spouse shall submit income and property declarations to the state revenue authorities at their place of residence on the first day of the month of the beginning of the nomination period established in accordance with this Constitutional Law, in accordance with the procedure and form established by the authorized state body of the Republic of Kazakhstan responsible for ensuring tax revenues and other mandatory payments to the budget."

     According to paragraph 2 of Article 104 of the Constitutional Law, "a candidate included in the party list and his (her) spouse, prior to registration, submit income and property declarations to the state revenue authorities at their place of residence on the first day of the month of the beginning of the nomination period established in accordance with this Constitutional Law, in the manner and in the form established by the authorized state body of the Republic of Kazakhstan responsible for ensuring tax revenues and other mandatory payments to the budget."

     Article 24 of the Constitutional Law of the Republic of Kazakhstan regulates the lists of voters (electors) and the procedure for their compilation. Voter lists are compiled during the elections of the President, deputies of the Mazhilis of Parliament and maslikhats, and members of other local self-government bodies. Lists of electors are drawn up during the election of deputies to the Senate. The basis for including a citizen in the list of voters at a particular polling station is the fact of his registration at his place of residence on the territory of this polling station.

     The voter lists are compiled in alphabetical or other order. The list shall include the last name, first name, patronymic, year of birth (at the age of eighteen – additionally the day and month), the individual identification number and the address of the voter's place of residence. The lists of electors are compiled in alphabetical or other order and include the surname, first name, patronymic, year of birth, individual identification number, name of the maslikhat of which the elector is a deputy, and the address of his place of residence.

     The list of voters at the place of residence is compiled by the relevant local executive body on the basis of the state database on individuals. Every voter has the right to register as a voter with the relevant local executive body from the moment the elections are announced or called.

     If a voter becomes aware no later than thirty days before the election that he/she will not be able to arrive at the polling station at his/her place of registration on election day, he/she has the right to apply to the local executive body at his/her place of residence with a written application for inclusion in the relevant voter list. When a citizen applies in accordance with this paragraph, the local executive body shall arrange for the exclusion of the citizen from the list of voters at the place of registration and his inclusion in the list of voters of the polling station where the citizen will vote.

     The voter lists for each polling station are signed by the akim, by whose decision the precinct was formed, and submitted according to the act twenty days before the start of voting.

     By July 1 and January 1 of each year, information about voters and the boundaries of polling stations is submitted electronically by the local executive body to the relevant territorial election commissions, which ensure the reconciliation and transmission of information to higher election commissions.

     The procedure for reconciliation and submission of information is determined by the Central Election Commission. Officials of local executive bodies are responsible for the accuracy of the voter lists, as well as data on voters provided by the relevant election commission.

     Students enrolled in specialized secondary and higher educational institutions, as well as full-time professional postgraduate education programs, who live in dormitories, are included in the voter list at the location of the dormitory.

     The lists of military personnel who are in military units, as well as their family members and other voters residing in the locations of military units, are compiled on the basis of information provided by the commanders of military units.

     Voter lists by polling stations established in rest homes, sanatoriums, inpatient medical and preventive institutions, in places where citizens are located in remote and hard-to-reach areas, at cattle breeding sites, in pre-trial detention facilities and temporary detention facilities, as well as at representative offices of the Republic of Kazakhstan in foreign countries, on ships belonging to the Republic of Kazakhstan and those who are sailing on election day, are compiled on the basis of data provided by the heads of these institutions., by the relevant akims, heads of the named representative offices and ship captains.

     Voter lists by polling stations established in places of temporary stay (in rest homes, sanatoriums, inpatient medical and preventive institutions, at livestock breeding sites, in pre-trial detention facilities and temporary detention facilities, as well as at representative offices of the Republic of Kazakhstan in foreign countries, on ships belonging to the Republic of Kazakhstan and sailing on election day), are subject to mandatory clarification as of the day preceding the voting day.

     The lists of electors for the election of deputies to the Senate of Parliament are compiled by the relevant territorial election commissions on the recommendation of the secretary of the relevant regional, city (city of republican significance and the capital of the Republic) maslikhat. Making changes to the lists of voters (electors) after the start of vote counting is prohibited.

     In accordance with Articles 26-1 of the Constitutional Law, the relevant akim submits the voter lists for each polling station according to the act to the precinct election commission twenty days before the start of voting in electronic form and (or) on paper, to the territorial commission – in electronic form. If changes are made to the list of voters, the precinct election commission informs the higher election commission about this. The lower-level territorial election commission submits the voter lists electronically to the higher commission for inclusion in the electronic Register of citizens – voters of the Republic of Kazakhstan. The procedure for the formation of voter lists for voting, as well as their submission to election commissions, is determined by the Central Election Commission.

     According to paragraph 3 of the Rules for the Reconciliation and Presentation of Information about Voters and the boundaries of Polling Stations, approved by Resolution No. 11/196 of the Central Election Commission of the Republic of Kazakhstan dated August 23, 2018, "information about voters at their place of residence is generated by the registrars of the local executive body on the basis of the state database on individuals (hereinafter - GBD FL) and includes:

     1) information about the identity of the voter:

     surname;

     name;

     patronymic (if any);

     date, month and year of birth;

     individual identification number (hereinafter referred to as IIN);

     nationality (if indicated in the documents);

     floor;

     2) details of the voter's identity document:

     document number;

     date of issue of the document;

     3) information about the voter's place of residence:

     name of the region, district, or locality;

     street;

     the number of the house, building, apartment.

     In order to verify the above-mentioned facts, the election commission needs to obtain relevant information and materials from officials."  

     Thus, the objective side of the offense being commented on is expressed in actions (inaction) on failure by officials to provide information and materials to the election commission (republican referendum commission) on the presence or absence of a candidate's criminal record that has not been expunged or removed in accordance with the procedure established by law; on the guilt of a corruption offense and a candidate's offense, recognized by a court in accordance with the procedure established by law.; about the candidate's citizenship; on the reliability of information on income and property declared by the candidate or his (her) spouse; on the voter lists for each polling station or their failure to comply with the commission's decision taken within its authority.

     It should be noted that, according to paragraph 2 of Article 10 of the Constitutional Law, the unified system of election commissions consists of:

     - The Central Election Commission of the Republic;

     - territorial election commissions;

     - precinct election commissions.

     In accordance with paragraph 5 of Article 10 of the Constitutional Law, "decisions of election commissions taken within their competence are binding on all state bodies, organizations, local self-government bodies, as well as their officials in the relevant territory."

     The subjective side can be expressed in the form of intent or carelessness.  

     A special subject of this offense is an official who, by virtue of his official powers, possesses the necessary information and materials and does not submit them to the election commission or does not comply with the commission's decisions taken within its powers.  

     In accordance with Part 1 of Article 805 of the Administrative Code, administrative offenses provided for in Article 101 of the Administrative Code relate to cases in which the prosecutor issues a decision to institute proceedings on administrative offenses.  

     According to Part 1 of Article 684 of the Administrative Code, cases of administrative offenses provided for in Article 101 of the Administrative Code are considered by judges of specialized district and equivalent administrative courts.  

At the same time, a protocol on an administrative offense is not drawn up when individuals apply for restoration of violated rights under Article 101 of the Administrative Code. In this case, the case is considered by the court without drawing up a protocol on the offense (paragraph 4) of Part 1 of Article 807 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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