Commentary on Article 151. Falsification of Election Documents, Referendum Documents, or Incorrect Counting of Votes of the Criminal Code of the Republic of Kazakhstan
1. Falsification of election documents or referendum documents, insertion of fictitious entries into ballots or signature sheets, knowingly incorrect counting of votes or knowingly incorrect determination of election results or referendum outcomes, or violation of the secrecy of voting, if these acts are 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 by a member of an election commission or a referendum commission, —
shall be punishable by a fine in the amount of up to four thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to four years, or imprisonment for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without such deprivation.
2. The same acts committed by violating the established procedure for the functioning of the electronic electoral system, —
shall be punishable by imprisonment for a term of up to seven years.
The public danger of the crime 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 (see the commentary to Article 150 of the Criminal Code).
The object of the crime is the procedure for voting and conducting a referendum established by legislation.
The procedure for conducting a republican referendum is regulated by Chapter III of the Constitutional Law of the Republic of Kazakhstan dated November 2, 1995, “On the Republican Referendum.”
The objective side of the crime consists of the following alternative acts:
falsification of election documents and referendum documents;
insertion of fictitious entries into ballots or signature sheets;
knowingly incorrect counting of votes or knowingly incorrect determination of election results or referendum outcomes;
violation of the secrecy of voting.
Falsification of election documents should be understood as forgery thereof, that is, the insertion of knowingly false information into election documents or the complete preparation of documents containing such information, for example, voter lists or lists of referendum participants; alteration of a document; replacement of one document with another; preparation of election documents in the names of fictitious persons.
Insertion of fictitious entries into ballots or signature sheets means entering knowingly false information into ballots or signature sheets.
Knowingly incorrect counting of votes or knowingly incorrect determination of election results or referendum outcomes means the intentional distortion of voting results in the direction of reducing or increasing the number of votes cast for the decision on the issue on which the voting was conducted.
Violation of the secrecy of voting means violating the conditions that ensure the secrecy of voting or creating conditions that make it possible to monitor the expression of the will of voters. Such actions may consist of creating an environment at a polling station that prevents a voter from exercising the right to secret voting (the absence of voting booths, installation in voting booths of special equipment that visually records the voter's expression of will, placing various marks on ballot papers, demanding that voters disclose their choice under the guise of a “sociological survey” or “public monitoring,” and other similar actions).
By its structure, the corpus delicti is formal. The crime is considered completed from the moment at least one of the acts (omissions) listed in the disposition of the article is committed by the persons specified in the article, regardless of whether or not the election or referendum results were distorted.
From the subjective side, the crime is characterized by direct intent, that is, the person is aware that they are violating the democratic principle of the electoral campaign, foresees the possibility or inevitability of the consequences and desires their occurrence.
The subject is special, namely, an authorized representative of a candidate for President or an authorized representative of a candidate for deputy, a member of an election commission or a referendum commission.
Part 2 of the commented article provides for liability for the same acts committed by violating the established procedure for the functioning of the electronic electoral system, which means entering knowingly distorted and false data into the electronic electoral system that distort the results of election documents, elections or referendum outcomes.
In accordance with Article 50-1 of the Constitutional Law of the Republic of Kazakhstan dated September 28, 1995, “On Elections in the Republic of Kazakhstan”: “The electronic electoral system is a set of information technologies, information networks and means of their software and technical support intended to automate information processes in the preparation for and conduct of elections.
The software and technical means used in the electronic electoral system must be certified in accordance with the legislation of the Republic of Kazakhstan.”
The procedure for the functioning of the electronic electoral system is regulated by the Constitutional Law (Chapter 9-1).
Legislative restrictions on the use of the electronic electoral system during elections are provided for in paragraph 3 of Article 50-2, according to which the following are prohibited: the use of electronic systems other than those designated by the Central Election Commission; connecting it to publicly accessible telecommunications networks and other information systems and communication networks not used in the electronic electoral system; unlawful interference and control during electronic voting, vote counting and the transmission of information about election results.
The act provided for in Part 1 of Article 151 of the Criminal Code is classified as a crime of medium severity.
The act provided for in Part 2 of Article 151 of the Criminal Code is classified as a serious crime.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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