Commentary on Article 150. Obstruction of the Exercise of Electoral Rights or the Work of Election Commissions of the Criminal Code of the Republic of Kazakhstan
1. Obstruction of the free exercise by a citizen of his or her electoral rights or the right to participate in a referendum —
shall be punishable by a fine in an amount of up to one hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and twenty hours.
1-1. Unlawful interference in the activities of election commissions or referendum commissions and obstruction of 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 an amount of up to one hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and twenty hours.
2. Acts provided for in Parts One and 1-1 of this Article:
1) involving bribery, deception, the use of violence or the threat of its use;
2) committed by a person using his or her official or professional position;
3) committed by a group of persons upon prior conspiracy or by a criminal group;
4) committed by violating the established procedure for the functioning of the electronic electoral system, —
shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of up to four years, or deprivation of liberty for the same period.
The public danger of the criminal offence under commentary (Parts 1 and 1-1 constitute criminal misdemeanours, while Part 2 constitutes a crime) 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.
Article 21 of the Universal Declaration of Human Rights of 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.
- Everyone has the right of equal access to public service in his or her country.
- 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 under 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 of 16 December 1966 states: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:
To take part in the conduct of public affairs, directly or through freely chosen representatives;
To vote and to be elected at genuine periodic elections which shall be held by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors;
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 the Republic 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 incapable 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 as a human being, and are associated with possession of the citizenship of a state.
Relations arising in 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, as well as guarantees ensuring the freedom of expression of the will of citizens of the Republic, are regulated by the Constitutional Law of the Republic of Kazakhstan dated 28 September 1995 “On Elections in the Republic of Kazakhstan”.
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 aforementioned Law).
In accordance with Paragraph 3 of Article 3 of the Law, participation of citizens of the Republic in elections is voluntary. No one shall have 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 incapable by a court, as well as citizens held in places of deprivation of liberty pursuant to a court sentence, shall not participate in elections (Paragraph 3 of Article 4 of the Law).
In accordance with Article 1 of the Constitutional Law of the Republic of Kazakhstan dated 2 November 1995 “On the Republican Referendum”, 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 shall be held throughout the territory of the Republic.
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 voting rights of citizens to participate in the referendum by secret ballot; 3) transparency (Article 4 of the aforementioned Law).
In accordance with Article 5 of the Law “On the Republican Referendum”, citizens of the Republic who have reached the age of eighteen shall have the right to participate in the referendum, regardless of their origin, social, official or property status, sex, race, nationality, language, attitude towards religion, beliefs, place of residence or any other circumstances. Citizens declared legally incapable by a court, as well as citizens held in places of deprivation of liberty pursuant to a court sentence, shall not have the right to participate in the referendum. Any direct or indirect restriction of the rights of other citizens of the Republic to participate in the referendum shall be inadmissible and shall be punishable by law (Paragraph 1). Citizens shall participate in the referendum directly and on equal terms, and each of them shall have, accordingly, one vote or an equal number of votes (Paragraphs 2 and 3).
The object of the criminal offence is the aforementioned constitutional right.
In certain cases, the subject matter may include election or referendum documents, for example, voter lists.
The objective element of the criminal offence under Part 1 consists of an act or omission expressed in:
obstructing the free exercise by a citizen of his or her electoral rights;
obstructing a citizen's right to participate in a referendum.
Obstruction means the creation of various impediments. In particular, the following actions of the perpetrator may be regarded as obstruction of the free exercise by a citizen of his or her electoral rights: exerting any kind of influence on a citizen exercising his or her electoral right that prevents the citizen from freely expressing his or her will in relation to elections, 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 in connection with a change of residence.
Obstruction of a citizen's exercise of the right to participate in a referendum consists in counteracting the activities of an initiative group, unlawfully restricting a citizen's right to participate in a referendum, for example, obstructing 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.
Under Part 1-1 of Article 150 of the Criminal Code, the objective element consists of: 1) unlawful interference in the activities of election commissions or referendum commissions; 2) 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.
Unlawful interference in the activities of election commissions or referendum commissions should be understood as unlawful actions of the perpetrator that obstruct the work of election commissions or referendum commissions as a whole, as well as the activities 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).
Obstruction of 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.
By its legal structure, the composition of the criminal offence is formal. The criminal offence shall be 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 right to participate in a referendum; unlawful interference in the activities 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 characterised by direct intent, since the person is aware of the socially dangerous nature of his or her act, that is, that it violates the electoral rights of citizens guaranteed by the Constitution of the Republic of Kazakhstan, foresees the possibility or inevitability of a violation of these rights and desires such a violation. Motives may be both personal (revenge, envy, etc.) and 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, and so forth).
The subject is a sane natural person who has reached the age of sixteen.
Part 2 of Article 150 of the Criminal Code provides for liability for obstructing the exercise of electoral rights or the right to participate in a referendum, or for unlawful interference in the activities of election commissions or referendum commissions and 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, where such acts are:
involving bribery, deception, the use of violence or the threat of its use;
committed by a person using his or her official or professional position;
committed by a group of persons upon prior conspiracy or by a criminal group;
committed by violating the established procedure for the functioning of the electronic electoral system.
Bribery means the promise or provision of any property benefits or advantages in exchange for non-participation in elections or a referendum, including the withdrawal of a candidacy in elections, non-participation in the work of the aforementioned commissions, or voting by a person contrary to his or her own expression of will, or performing duties in the commission not in accordance with his or her actual responsibilities but at the direction of the person offering the bribe. Where an official of an election commission or a commission for conducting a referendum is bribed, another, more serious crime is also committed — the giving of a bribe; that is, 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 an aggravating qualifying element may be characterised by beatings, the infliction of minor or moderate bodily harm, or unlawful deprivation of liberty. The infliction of grievous bodily harm constitutes an aggregate of crimes provided for by Subparagraph 1) of Part 2 of Article 150 and Article 106 of the Criminal Code.
The threat of the use of 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 violence that may actually be used in the present or in the future.
The subject of the offence of obstructing the exercise of electoral rights or the work of election commissions, committed by a person using his or her official or professional position, is a person who uses the powers granted to him or her by law to create various impediments.
Obstruction of the exercise of electoral rights or the work of election commissions shall be 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 commit this act jointly.
Obstruction of the exercise of electoral rights or the work of election commissions shall be deemed to have been committed by a criminal group if it was committed by an organised group, criminal organisation, criminal community, transnational organised group, transnational criminal organisation, transnational criminal community, terrorist group, extremist group, gang or illegal paramilitary formation.
Obstruction of the exercise of electoral rights or the work of election commissions shall be deemed to have been committed by violating 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, the “Sailau” Automated Information System) 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 acts provided for in Parts 1 and 1-1 of Article 150 of the Criminal Code are classified as criminal misdemeanours.
The act provided for in Part 2 of Article 150 of the Criminal Code is classified as a crime of medium gravity.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.*
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