Commentary to article 105. Violation of the rights of a member of the election commission (republican referendum commission) The Code of the Republic of Kazakhstan on Administrative Offences
Violation of the rights of a member of the election commission (republican referendum commission) to speak at a meeting of the election commission, to make proposals on issues within the competence of the relevant election commission and to demand voting on them, to get acquainted with the documents and materials of the election commission in which he is a member, to receive certified copies of them, to verify the activities of a lower-level election commission –
entails a fine in the amount of thirty-five monthly calculation indices.
Paragraph 1 of Article 19 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan" stipulates that "members of election commissions are representatives of state bodies and are protected by the state." One of the internationally recognized standards of modern democratic elections is their conduct by independent and independent electoral bodies (election commissions), whose status and powers are established by the Constitution and legislative acts.
The special status of members of election commissions is determined by the fact that it is these bodies that are called upon to ensure the fundamental principle of the foundations of the constitutional system – the principle of democracy. It is the members of the election commissions who, exercising their powers, "imperceptibly" ensure the exercise of electoral rights and the right to participate in a national referendum.
Paragraphs 1 and 5 of Article 11 of the Convention on Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (Chisinau, October 7, 2002) state that the preparation and conduct of elections, ensuring and protecting citizens' electoral rights and freedoms and monitoring their observance are entrusted to the electoral authorities (election commissions), whose status, competence and powers are established by the Constitution and legislative acts.
A member of an electoral body with the right of an advisory vote has the right to speak at a meeting of the electoral body, make proposals on issues within the competence of the electoral body, and demand voting on these issues; has the right to appeal actions (inaction). to transfer an electoral body to a higher electoral body or to a court, to exercise other powers provided for by laws.
In accordance with paragraphs 1 and 2 of Article 10 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Tajikistan", the state electoral bodies organizing the preparation and conduct of elections in the Republic are election commissions. The unified system of election commissions consists of:
- The Central Election Commission of the Republic;
- territorial election commissions;
- precinct election commissions.
According to paragraph 1 of Article 20 of the Constitutional Law of the Republic of Kazakhstan "On the Republican Referendum", the preparation and conduct of the referendum is carried out by:
1) The Central Election Commission of the Republic of Kazakhstan, which performs the functions of the Central Commission of the Referendum;
2) territorial election commissions of the Republic of Kazakhstan, performing the functions of territorial referendum commissions;
3) precinct election commissions that perform the functions of precinct referendum commissions.
Article 19 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan" establishes the rights of a member of the election commission. According to paragraph 5 of Article 19 of this Constitutional law, a member of the election commission:
1) be notified of the meetings of the relevant election commission forty-eight hours in advance, except in cases requiring immediate decision-making.;
2) has the right to speak at a meeting of the election commission, make proposals on issues within the competence of the relevant election commission, and request that a vote be held on them.;
3) has the right to ask other participants of the meeting questions in accordance with the agenda and receive substantive answers to them.;
4) has the right to get acquainted with the documents and materials of the election commission in which he is a member, to receive certified copies thereof;
5) upon authorization, confirmed by three-quarters of the votes of the members of the election commission in which he is a member, to verify the activities of the lower-level election commission;
6) is obliged to comply with the requirements of the Constitution, this Constitutional Law and other legislation of the Republic of Kazakhstan, generally accepted standards of ethics;
7) is obliged to fulfill the duties assigned to him, decisions and instructions of the election commission and its chairman, the higher election commission;
8) is obliged to ensure the observance and protection of the electoral rights and legitimate interests of citizens, to show impartiality and independence in decision-making, as well as to refrain from publicly evaluating the activities of candidates and political parties that have put forward a party list.;
9) is not bound by the decisions of the political party or other public association of which he is a representative, and has no right to defend their interests.
The general object of the offense is electoral rights, because these persons carry out their activities in their interests. The generic object of the offense is the rights and freedoms of the persons listed in the article, those socio-legal relations that arise in the electoral process, in accordance with the procedure established by the legislation of the Republic of Kazakhstan on elections (referendum).
The objective side of the offense is expressed in actions (inaction) that violate the rights of a member of the election commission (republican referendum commission) to speak at a meeting of the election commission, make proposals on issues within the competence of the relevant election commission, and demand voting on them, to get acquainted with the documents and materials of the election commission in which he is a member, receive certified copies of them, and verify the activities of the lower-level election commission.
The general subject of the offense is individuals or legal entities.
The subjective side of the offense may be expressed in the form of intent or negligence.
In accordance with Part 1 of Article 805 of the Administrative Code, administrative offenses provided for in Article 105 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 105 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 105 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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