Comment to Article 147. Falsification of election documents, referendum documents or incorrect counting of votes of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Falsification of election or referendum documents, making fictitious entries in ballots or subscription lists, knowingly incorrect counting of votes, or knowingly incorrect determination of election or referendum results, or violation of voting secrecy, if these acts were committed by an authorized representative of a candidate for President of the Republic of Kazakhstan, or an authorized representative of a candidate for deputy, as well as a member of the the election commission, or the commission for the conduct of the referendum, —
are punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or correctional labor for up to two years, or imprisonment for up to four years with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without one.
1. The same acts committed by violating the established procedure for the functioning of the electronic electoral system, —
are punishable by imprisonment for a term of up to seven years.
The public danger of this act is expressed in the violation of the political rights and freedoms of citizens enshrined in Article 33 of the Constitution of the Republic of Kazakhstan.
The object of the crime is the procedure for voting and holding a referendum established by law. The procedure for holding a republican referendum is regulated Chapter III of the Constitutional Law of the Republic of Kazakhstan "On the Republican Referendum" dated November 2, 1995 (as amended and supplemented).
The objective side of the crime is formed by the following alternative actions:
a) falsification of election and referendum documents;
b) making fictitious entries in the ballots or subscription lists;
c) deliberately incorrect counting of votes or deliberately incorrect determination of election results or referendum results;
d) violations of the secrecy of voting.
Falsification of election documents should be understood as their forgery, that is, the entry of deliberately false information into election documents or their complete production with such data, for example, in the lists of voters or referendum participants; distortion of a document; replacement of one document with another, compilation of election documents on behalf of fake persons.
Making fictitious entries in ballots or subscription lists means making deliberately false information in ballots or subscription lists.
A deliberately incorrect counting of votes or a deliberately incorrect determination of the election results or the results of a referendum means a deliberate distortion of the voting results in the direction of decreasing or increasing the votes for resolving the issue on which it was conducted.
Violation of the secrecy of voting means a violation of the conditions ensuring the secrecy of voting, or the creation of conditions allowing to control the expression of the will of the voters. These actions may consist in creating an environment at the polling station that does not allow the voter to vote by secret ballot (the absence of voting booths, the installation of special equipment in the voting booths that visually records the will of the voter, the application of various markings on the ballot papers, the requirement under the guise of "sociological survey", "public control" to report on your choice and more).
A crime is considered completed from the moment of the commission of at least one of the actions (omissions) listed in the disposition of the article, if they were committed by the persons specified in the article, regardless of whether the results of elections or referendums were distorted or not.
On the subjective side, the crime is characterized by direct intent, that is, the person is aware that he is violating the democratic principle of the election campaign, anticipates the possibility or inevitability of consequences and desires it.
A subject is a special one, that is, a proxy of a presidential candidate or a proxy of a candidate for deputy, a member of an initiative group or an election commission or a referendum commission.
Part 2 of this article provides for liability for the same acts committed by violating the established procedure for the functioning of the electronic electoral system, which means the entry into the electronic electoral system of deliberately distorted, false data that distort the results of electoral documents, elections or the results of a referendum.
In accordance with Article 50-1 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan" dated September 28, 1995 (as amended and supplemented dated 04/15/2005) "Electronic electoral system is a set of information technologies, information networks and their software and hardware designed to automate information processes in the preparation and conduct of elections.
The software and hardware used in the electronic election system must be certified in accordance with the legislation of the Republic of Kazakhstan."
The functioning of the electronic electoral system is regulated by the Constitutional Law (Chapter 9-1). The procedure for using the electronic electoral system, in the part not regulated by the said Constitutional Law, is established by the Central Election Commission (part 7 of art. 50-2).
The crime provided for in Part 1 of Article 147 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity.
The crime provided for in Part 2 of Article 147 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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