Comment to Article 114. Deliberate destruction or damage of campaign materials  The Code of the Republic of Kazakhstan on Administrative Offences  

     Intentional destruction or damage of campaign materials of candidates for deputies or for another elected position, posted with the consent of the owner or another owner on buildings, structures and other objects, –  

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

     The right to campaign is an integral part of the constitutional right to vote and be elected. Campaign materials of candidates for deputies and for other elected positions are an integral element of any election campaign, since through them citizens receive information about the candidates' election program and can make a choice based on them.  

     In the fair opinion of I.V. Zakharov and A.N. Kokotov, "during the electoral period, the movement of information in society acquires special importance, which requires formal rules that ensure that the rights of some subjects are not diminished in relation to others."

     Paragraph 2 of Article 19 of the International Covenant on Civil and Political Rights, done in New York on December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 No. 91, stipulates that "everyone has the right to freedom of expression; this right includes freedom to seek, receive and disseminate all kinds of information." and ideas, regardless of state borders, orally, in writing, or through print or artistic forms of expression, or in other ways of their choice."  

     The general object of the offense is the established procedure for ensuring the electoral rights of citizens. The generic object of the offense is the social and legal relations that arise when observing the information support procedure for the electoral process.

     In accordance with subparagraph 13) of paragraph 2 of Article 50 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan", a person bears administrative and other responsibility established by the law of the Republic of Kazakhstan in case of intentional destruction or damage of campaign materials.  

     Pre-election campaigning is an activity aimed at encouraging voters to vote for or against a candidate or a political party (paragraph 1 of Article 27 of the Constitutional Law). Therefore, the destruction and damage of campaign materials leads to the fact that voters may not receive complete information about all candidates for deputies or other elected positions. This, in turn, can lead to a distortion of the will of voters when voting in elections.  

     Pre-election campaigning begins at the end of the candidate registration period and ends at zero o'clock local time on the day preceding election day. In case of repeated voting, pre-election campaigning begins on the day of the appointment of the day of repeated voting and ends at zero o'clock local time on the day preceding the election day (paragraph 2 of Article 27 of the Constitutional Law). This means that it is possible to bring to administrative responsibility under this article for its commission only during the period of election campaigning. Intentional destruction or damage of campaign materials during another period cannot be qualified as an administrative offense.  

     The Constitutional Law "On Elections in the Republic of Kazakhstan" states that election campaigning is carried out, inter alia, through the release and (or) distribution of printed, audiovisual and other campaign materials (paragraph 3, paragraph 3, Article 27).  

     Paragraph 2 of the Rules for Election Campaigning through the Mass Media and Information support for the elections of the President of the Republic of Kazakhstan, Deputies of Parliament, maslikhats of the Republic of 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, states that "information support for elections is a set of measures aimed at to promptly and widely inform voters about the preparation and conduct of the election campaign, with the exception of pre-election campaigning."  

     The first paragraph of paragraph 3 of these Rules stipulates that "the state guarantees citizens and public associations the right to freely campaign for or against a candidate or a political party."

     When qualifying actions under this article, it is necessary to keep in mind the provisions of paragraph 6 of Article 28 of the Constitutional Law "On Elections in the Republic of Kazakhstan" that local executive bodies, together with relevant election commissions, determine the locations for the placement of campaign materials for all candidates and equip them with stands, billboards, bollards. Printed campaign materials are placed on conditions that ensure equal rights for all candidates. Candidates have the right to post campaign printed materials in other places with the permission of the owner of the relevant facility.

     This means that when qualifying a person's actions under this article, it is necessary to make sure that the owner consented to the posting of propaganda printed materials on the objects owned by the owner. In other words, the initial posting of campaign materials should be legal.  

     For example, it is prohibited to post campaign materials on monuments, obelisks, buildings and structures of historical, cultural or architectural value, as well as in the polling station (paragraph 6 of Article 28 of the Constitutional Law). Therefore, if, for example, a person damaged the propaganda material posted on the monument, then his actions cannot be qualified under Article 114 of the Administrative Code.  

     The objective side of the offense is expressed in actions related to the destruction or damage of propaganda materials posted with the consent of the owner or another owner on buildings, structures and other objects.  

     According to the fair opinion of Yu.A. Rosenbaum, "the objective side of the offense is expressed in actions that resulted in the destruction or damage of printed campaign materials posted in authorized places, therefore, the destruction or damage of campaign materials posted on buildings, structures or other objects cannot be considered a violation of the commented article without the consent of the owner or owner of these objects, expressed in a provable form, and also posted in places where it is prohibited."

     The subject of this offense is any natural person. The subjective side of this offense is expressed in the fact that it can only be committed intentionally.

     In accordance with Part 1 of Article 805 of the Administrative Code, administrative offenses provided for in Article 114 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 114 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 114 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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