Commentary on Article 146. Obstruction of the Exercise of Electoral Rights or the Work of Election Commissions of the Criminal Code of the Republic of Kazakhstan
1. Obstructing a citizen from freely exercising his or her electoral rights or the right to participate in a referendum, as well as unlawful interference in the work of election commissions or referendum commissions and obstructing voting, the performance of duties related to the registration of candidates and party lists, the counting of votes and the determination of voting results in elections or a referendum —
shall be punishable by a fine in the amount of fifty to one hundred monthly calculation indices, or in the amount of the salary or other income of the convicted person for a period of up to one month, or by community service for a period of one hundred and twenty to one hundred and eighty hours, or by corrective labour for a period of up to one year.
2. The same acts:
a) committed in conjunction with bribery, deception, the use of violence or the threat of its use;
b) committed by a person using his or her official or professional position;
c) committed by a group of persons upon prior conspiracy or by an organized group;
d) committed through violation of the established procedure for the functioning of the electronic electoral system —
shall be punishable by a fine in the amount of two hundred to five hundred monthly calculation indices, or in the amount of the salary or other income of the convicted person for a period of two to five months, or by corrective labour for a period of one to two years, or by arrest for a period of up to six months, or by restriction of liberty for a period of up to five years, or by imprisonment for the same period.
Article 21 of the Universal Declaration of Human Rights (10 December 1948) states:
«1. Everyone has the right to take part in the government of his or her country, directly or through freely chosen representatives.
2. Everyone has the right of equal access to public service in his or her country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be held by universal and equal suffrage and shall be conducted by secret ballot or by equivalent free voting procedures».
The International Covenant on Civil and Political Rights (16 December 1966) states:
«Every citizen shall have the right and the opportunity, without any discrimination and without unreasonable restrictions:
a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
c) To have access, on general terms of equality, to public service in his or her country».
In accordance with Article 33 of the Constitution of the Republic of Kazakhstan, citizens of Kazakhstan have the right to elect and be elected to state bodies and local self-government bodies, as well as to participate in a republican referendum, with the exception of persons declared legally incompetent by a court, as well as persons held in places of deprivation of liberty pursuant to a court sentence. Electoral rights are political rights which, by their nature, are inalienable, belong to every person from birth and are connected with possession of the citizenship of a state.
The Constitutional Law of the Republic of Kazakhstan dated 28 September 1995 «On Elections in the Republic of Kazakhstan» regulates relations arising in connection with the preparation and conduct of elections of the President, deputies of the Senate and the Mazhilis of Parliament, maslikhats and members of local self-government bodies of the Republic of Kazakhstan, and also establishes guarantees ensuring the freedom of expression of the will of citizens of the republic.
Elections in the republic are based on the free exercise by a citizen of the republic of his or her right to elect and be elected (Article 2 of the Law).
In accordance with Part 3 of Article 3 of the Law, participation of citizens of the republic in elections is voluntary. No one has the right to compel a citizen to participate or not to participate in elections, or to restrict his or her expression of will.
Citizens declared legally incompetent by a court, as well as citizens held in places of deprivation of liberty pursuant to a court sentence, do not participate in elections (Part 3 of Article 4 of the Law).
In accordance with Article 1 of the Constitutional Law of the Republic of Kazakhstan «On the Republican Referendum» dated 2 November 1995 (as subsequently amended and supplemented), a republican referendum is a nationwide vote on draft Constitutions, constitutional laws, laws and decisions on other particularly important issues of state life of the Republic of Kazakhstan. The referendum is held throughout the territory of the republic (Part 2).
The conduct of a referendum is based on the following principles: 1) voluntary participation in the referendum and free expression of the will of citizens; 2) universal, equal and direct right of citizens to participate in the referendum by secret ballot; 3) transparency (Article 4 of the Law).
In accordance with Article 5 of the Constitutional Law of the Republic of Kazakhstan, the right to participate in a referendum belongs to citizens of the republic who have reached the age of eighteen, regardless of their origin, social, official or property status, gender, race, nationality, language, attitude towards religion, beliefs, place of residence or any other circumstances.
Citizens declared legally incompetent by a court, as well as those held in places of deprivation of liberty pursuant to a court sentence, do not have the right to participate in a referendum. Any direct or indirect restriction of the rights of other citizens of the republic to participate in a referendum is inadmissible and is punishable by law (Part 1). Citizens participate in the referendum directly, on equal grounds, and each of them has, accordingly, one vote or an equal number of votes (Parts 2 and 3).
The public danger of the act under consideration lies in the violation of the constitutional right of citizens of the Republic of Kazakhstan to elect and be elected to state bodies and local self-government bodies, as well as to participate in a republican referendum.
The object of the crime is the aforementioned constitutional right.
In certain cases, the subject matter of the crime may be election documents relating to elections or a referendum, for example, voter lists.
The objective element of the crime is constituted by an act or omission expressed in:
- Obstructing a citizen from freely exercising his or her electoral rights;
- Obstructing a citizen from participating in a referendum;
- Unlawful interference in the work of election commissions or referendum commissions;
- Obstructing voting, the performance of duties related to the registration of candidates and party lists, the counting of votes and the determination of voting results in elections or a referendum.
Obstruction means the creation of various impediments.
In particular, actions of the perpetrator involving exerting any kind of influence on a citizen exercising his or her electoral rights, which prevents the citizen from freely expressing his or her will in elections, may be regarded as obstruction of the free exercise of electoral rights by a citizen. For example, removing candidates from participation in an election campaign; creating obstacles and difficulties in the nomination of specific candidates; refusing to issue a certificate granting the right to vote due to a change of place of residence.
Obstructing a citizen from exercising the right to participate in a referendum consists in counteracting the activities of an initiative group and unlawfully restricting a citizen's right to participate in a referendum. For example, counteracting the establishment or activities of an initiative group for holding a referendum, unlawfully excluding citizens from the list of persons to be surveyed, and so forth.
Unlawful interference in the work of election commissions or referendum commissions should be understood as unlawful actions of the perpetrator that impede the work of election commissions or referendum commissions as a whole, as well as the work of their individual members (for example, prohibiting a member of an election commission from attending its meetings, depriving election commissions of premises or ignoring their lawful demands, or unjustifiably refusing to register an initiative group for holding a referendum).
Obstructing voting and the performance of duties related to the registration of candidates, the counting of votes and the determination of voting results in elections or a referendum may be expressed in such actions as depriving observers of the opportunity to be present during voting or vote counting, disturbing public order, and so forth.
The crime is deemed completed from the moment of committing: obstruction of the free exercise by a citizen of his or her electoral rights; obstruction of a citizen's participation in a referendum; unlawful interference in the work of election commissions or referendum commissions; obstruction of voting and the performance of duties related to the registration of candidates and party lists, the counting of votes and the determination of voting results in elections or a referendum.
The subjective element of the act is characterized by direct intent, since the person is aware of the socially dangerous nature of his or her act, namely, that it violates the electoral rights of citizens guaranteed by the Constitution of the Republic of Kazakhstan, foresees the possibility or inevitability of the violation of these rights and desires such a violation. The motives may be personal (revenge, envy, etc.) as well as political (unwillingness to allow a person who is a member of a particular party to be nominated as a candidate, lobbying for «one's own» candidate, etc.).
The subject of the crime under consideration is general — a sane natural person who has reached the age of sixteen.
Part 2 of Article 146 of the Criminal Code provides for qualifying elements:
a) Obstruction of the exercise of electoral rights or the work of election commissions committed in conjunction with bribery, deception, the use of violence or the threat of its use;
b) Obstruction of the exercise of electoral rights or the work of election commissions committed by a person using his or her official position;
c) Obstruction of the exercise of electoral rights or the work of election commissions committed by a group of persons upon prior conspiracy or by an organized group;
d) An act committed through violation of the established procedure for the functioning of the electronic electoral system.
Bribery means promising or providing any property benefits or advantages in exchange for non-participation in elections or a referendum, including withdrawal of a candidacy in elections, non-participation in the work of the aforementioned commissions, or voting contrary to the person's own expression of will, or performing duties in a commission that are not the person's own duties but are carried out at the direction of the person providing the bribe. When an official of an election commission or a referendum commission is bribed, another, more serious crime is also committed — giving a bribe, which means that there is an aggregate of crimes.
Deception means misleading a participant in an election campaign regarding various factual circumstances, in particular, the identity of a candidate, the time and place of elections or a referendum, the voting procedure, and so forth.
Violence, as a qualifying element of this crime, may be characterized by battery, infliction of minor or moderate bodily harm, or unlawful deprivation of liberty. Infliction of grievous bodily harm constitutes an aggregate of crimes under paragraph «a» of Part 2 of Article 146 of the Criminal Code and Article 103 of the Criminal Code.
The threat of using violence means psychological influence on the victim by informing the victim of an intention to use physical violence. In this case, the victim understands that this is not merely intimidation, but something that may actually occur in the present or in the future.
The subject of the offence consisting of obstruction of the exercise of electoral rights or the work of election commissions committed by a person using his or her official position is an official who uses the powers granted to him or her by law to create various obstacles.
Obstruction of the exercise of electoral rights or the work of election commissions is deemed to have been committed by a group of persons upon prior conspiracy if it was committed by two or more persons who had agreed in advance to jointly commit this act.
Obstruction of the exercise of electoral rights or the work of election commissions is deemed to have been committed by an organized group if it was committed by a stable group of persons who had united in advance to commit one or more crimes.
Obstruction of the exercise of electoral rights or the work of election commissions is deemed to have been committed through violation of the established procedure for the functioning of the electronic electoral system if the actions of the perpetrator resulted in a failure of the automated electoral system software (for example, AIS «Sailau») or a malfunction in the operation of computing equipment while its physical integrity remained intact (for example, complete or partial failure of a computer, computer system or server), or resulted in a breach of the security of the electronic system.
The crime is deemed completed from the moment the act is committed, regardless of whether the obstruction of the exercise of the aforementioned rights or the work of the commissions was actually successful.
The crime provided for in Part 1 of Article 146 of the Criminal Code of the Republic of Kazakhstan belongs to the category of minor offences.
The crime provided for in Part 2 of Article 146 of the Criminal Code of the Republic of Kazakhstan belongs to the category of offences of medium gravity.
Commentary to the Criminal Code of the Republic of Kazakhstan dated 2007 by I. Sh. BORCHASHVILI, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the act: 02.08.2007Date of adoption of the act: 02.08.2007Place of adoption: NONEBody that adopted the act: 180000000000Territorial scope: 100000000000Registration number of the normative legal act assigned by the law-making body: 167Status of the act: newSphere of legal relations: 028000000000Form of the act: COMMENTARYLegal force: 1900Language of the act: rus
Criminal Code, Commentaries to the Criminal Code, Normative Resolution of the Supreme Court, Criminal Legislation, Normative Legal Acts of the Republic of Kazakhstan.
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