Comment to Article 118. Provision of services by individuals and legal entities to candidates and political parties without their written consent The Code of the Republic of Kazakhstan on Administrative Offences
Provision of services by individuals and legal entities to candidates and political parties in connection with their election activities without their written consent –
entails a fine for individuals in the amount of twenty, for small businesses or non–profit organizations – in the amount of thirty, for medium-sized businesses - in the amount of forty, for large businesses – in the amount of fifty monthly calculation indices
Individuals and legal entities providing services to a candidate or a political party related to election campaigning must have their written consent to accept the service. Persons who do not have written consent are liable in accordance with the laws of the Republic of Kazakhstan (paragraph 2, paragraph 7, Article 28 of the Constitutional Law "On Elections in the Republic of Kazakhstan").
The general object of this offense is the established procedure for the provision of services by individuals and legal entities to candidates and political parties. The generic object of the offense being commented on is the legal relations that arise when individuals and legal entities provide services to candidates and political parties.
The objective side of the offense is expressed in actions in the form of providing services to candidates, political parties, when there is no corresponding written consent from candidates or political parties.
According to clause 1 of Article 683 of the Civil Code of the Republic of Kazakhstan (Special Part), "under a contract for the provision of paid services, the contractor undertakes to provide services on behalf of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services." These services may be of a different nature. These can be consulting, marketing, auditing, information, political technology, communication services, and others.
In accordance with clause 6) of Article 1 of the Law of the Republic of Kazakhstan dated May 4, 2010 No. 274-IV "On Consumer Rights Protection", "service" means "activities aimed at meeting the needs of consumers, the results of which have no material expression".
It should be borne in mind that these services should be related specifically to the election activities of candidates and political parties.
When qualifying a person's actions under Article 118 of the Administrative Code, it should be assumed that such a status as a "candidate for an elected position" arises from the moment of registration.
Thus, Article 59 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan" states that registration of presidential candidates is carried out by the Central Election Commission. In accordance with paragraphs 1) and 2) of paragraph 7 of Article 59 of the same Constitutional Law of the Republic of Kazakhstan, the Central Election Commission:
- no later than on the seventh day after the registration of presidential candidates, publishes in the mass media a notice of registration indicating the surname, first name, patronymic, year of birth, position (occupation), place of work and residence of each candidate, as well as, depending on the candidate's discretion, information about his membership in a public association., nationality;
- issues the appropriate certificate to the candidates during registration.
According to paragraphs 1, 1) and 2) of paragraph 6 of Article 73 of the Constitutional Law, registration of candidates for deputies of the Senate is carried out by regional and city (cities of republican significance and the capital) election commissions, respectively.
Regional or city (cities of republican significance and the capital of the Republic) election commission:
- when registering candidates for deputies of the Senate, he issues them an appropriate certificate.;
- no later than on the seventh day after registration of candidates for deputies of the Senate, publishes in the mass media a notice of registration indicating the surname, first name, patronymic, year of birth, position (occupation), place of work and residence of each candidate, as well as, depending on the candidate's discretion, information about his membership in the public association and nationality.
In accordance with paragraphs 1, paragraphs 1), 2), 3), paragraph 6, Article 89 of the Constitutional Law of the Republic of Kazakhstan, registration of party lists submitted by political parties and candidates nominated by the Council of the Assembly of People of Kazakhstan is carried out by the Central Election Commission.
Central Election Commission:
- no later than on the tenth day after the registration of the party lists, publishes in the mass media a notice of registration indicating the name of the political party and the number of persons included in the party list, as well as the surname, first name, patronymic, year of birth, position (occupation), place of work and residence of each person included in the party list. the list;
- no later than on the third day after registration of candidates nominated by the Council of the Assembly of People of Kazakhstan, publishes in the mass media a notice of registration indicating the name of the Assembly of People of Kazakhstan, the number of persons nominated by the Council of the Assembly of People of Kazakhstan, last name, first name, patronymic, year of birth, position (occupation), place of work and residence each nominated person, as well as nationality, is at the discretion of the candidates.;
- issues relevant certificates to candidates during registration.
Regarding candidates for deputies of maslikhats, paragraph 1 of Article 104 of the Constitutional Law states that "registration of party lists submitted by political parties is carried out by the relevant territorial election commissions." In accordance with paragraphs 1) and 2) of paragraph 6 of Article 104 of the Constitutional Law, the territorial Election Commission:
- no later than on the fourth day after the registration of candidates, publishes in the local mass media a notice of registration indicating the surname, first name, patronymic, year of birth, position (occupation), place of work and residence of each candidate, as well as, depending on the candidate's discretion, information about his membership in a public association and nationality;
- issues the appropriate certificate to the candidates during registration.
Regarding the registration of candidates for members of local self-government bodies, it should be noted that the Constitutional Law contains chapter 14 "Elections to other local self-government bodies of the Republic of Kazakhstan", elections to "other local self-government bodies" have not yet been held. According to paragraphs 1 and 5 of Article 118 of the Constitutional Law, candidates are registered by territorial election commissions. The territorial election commission draws up a protocol on the registration of candidates.
In accordance with paragraph 1 of Article 1 of the Law of the Republic of Kazakhstan dated July 15, 2002 No. 344 "On Political Parties", "a political party is a voluntary association of citizens of the Republic of Kazakhstan expressing the political will of citizens, various social groups, in order to represent their interests in representative and executive bodies of state power, local self-government and participation in their formation.".
The subjective side of the offense is expressed in the form of intent or negligence.
The subject of the offense is individuals, small business entities or non-profit organizations, or medium-sized businesses.
The following plot can be used as an example. Citizen K., a candidate for deputy of the district maslikhat, asked his friend citizen S. to put up posters and booklets containing the text of the election campaign at bus stops and detached fences. After the end of working hours, citizen S. came to the election headquarters of the candidate for deputy of the district maslikhat, citizen K., took 50 leaflets and 50 booklets and pasted them on the territory of the district center. However, Citizen S. did not receive the written consent of citizen K. to provide services for pasting campaign materials. Thus, the actions of citizen S. must be qualified under Article 118 of the Administrative Code.
Another example: MSM Printing House LLP provided services to the candidate for deputy of the city Maslikhat, Mr. B., which consisted in printing election leaflets. However, MSM Printing House LLP provided these services without the written consent of Mr. B.
In accordance with Part 1 of Article 805 of the Administrative Code, administrative offenses provided for in Article 118 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 118 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 118 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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