Commentary to article 126. Obstruction of the legitimate activities of proxies of candidates, political parties, media representatives and election observers The Code of the Republic of Kazakhstan on Administrative Offences
1. Obstruction of the right of proxies of candidates, political parties, observers of political parties, other public associations, non-profit organizations of the Republic of Kazakhstan, representatives of the mass media to attend meetings of the election commission or to be present at the polling station on election day from the moment of its opening until the establishment of voting results during the counting of votes, or monitoring the voting process, the procedure of counting votes and registration of voting results at the polling station, at the polling station, or presence at the opening and installation of the electronic election system equipment, as well as during the verification of its operation in cases where such a right is provided for by law., –
entails a fine in the amount of thirty-five monthly calculation indices.
2. Obstruction of the right of proxies of candidates, political parties, observers of political parties, other public associations, non-profit organizations of the Republic of Kazakhstan to accompany members of the election commission to organize voting outside the polling station or to be present during the voting of voters outside the polling station, or to take photos, audio- and video recordings, or monitoring the procedures for transmitting protocols on voting results to higher election commissions, or refusing to receive information on the number of voters who took part in voting, including voting outside the premises, or appealing decisions, actions (inaction) of the relevant election commission and (or) its members in cases where such a right stipulated by law, –
entails a fine in the amount of thirty-five monthly calculation indices.
3. Refusal of proxies of candidates and political parties to re-count votes in cases where such a right is provided for by law, –
entails a fine in the amount of thirty-five monthly calculation indices.
4. Obstruction of the right of observers of foreign states and international organizations, representatives of foreign mass media to be present at all stages of the electoral process, or to receive information from election commissions about the course of the election campaign, or to have access to polling stations during voting and vote counting, or to meet with participants in the electoral process, or to make public statements, or to observe procedures transfer of protocols on voting results to higher election commissions in the following cases:, when such a right is provided for by law, it entails a fine in the amount of thirty–five monthly calculation indices.
Part 1. In accordance with paragraph 17), paragraph 2, Article 50 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan", a person bears administrative and other responsibility established by the law of the Republic of Kazakhstan in case of obstruction of the legitimate activities of proxies of candidates, political parties, representatives of the media and election observers.
The general object of the offense is the established procedure for ensuring the activities of proxies of candidates, political parties, representatives of the media and election observers. The generic object is the legal relations that arise when observing the procedure for the activities of proxies of candidates, political parties, media representatives and election observers.
The Instructions on Registration of proxies, approved by Resolution No. 62/108 of the Central Election Commission of the Republic of Kazakhstan dated November 21, 2011, detail the procedure for registration of proxies of presidential candidates, deputies of the Senate of Parliament, Majilis of the Parliament of the Republic of Kazakhstan, elected by the Assembly of People of Kazakhstan, akims of a city of regional significance, village, settlement, rural district (hereinafter referred to as candidates), as well as trusted representatives of political parties that have put forward party lists of candidates for deputies of the Mazhilis of Parliament, maslikhats of the Republic of Kazakhstan.
Presidential candidates, deputies of the Senate of the Parliament, the Mazhilis of the Parliament of the Republic of Kazakhstan, elected by the Assembly of the People of Kazakhstan, political parties may have proxies who assist them in conducting the election campaign, conduct election campaigning, represent the interests of candidates, political parties in accordance with paragraph 1 of Article 31 of the Constitutional Law "On Elections in the Republic of Kazakhstan"".
Candidates for akims of a city of district significance, village, settlement, rural district may have trusted persons who assist them in conducting an election campaign, conduct election campaigning, and represent candidates' interests in relations with government agencies and other organizations, public associations, and election commissions in accordance with paragraph 7 of Article 36-1 of the Law of the Republic of Kazakhstan "On Local Self-Government". public administration and self-government in the Republic of Kazakhstan".
Candidates and political parties determine their proxies at their discretion and apply for registration of proxies in accordance with appendix 1 to the Instructions to the relevant election commission.
Persons proposed by a candidate or a political party as proxies shall submit to the relevant election commission a statement of their consent to be a proxy in accordance with appendix 2 to the Instructions.
The application for registration of the candidates' proxies is signed personally by the candidate or his authorized persons by proxy. The application for registration of authorized representatives of political parties is signed by a person authorized by the political party or its branch (representative office).
Candidates for President of the Republic of Kazakhstan and political parties may have proxies in the number of not more than three persons for each polling station in the relevant electoral district.
A candidate for deputy of the Senate of Parliament may have one proxy in each district, city, or district in the city. A candidate for deputy of the Mazhilis of Parliament, elected by the Assembly of the People of Kazakhstan, may have no more than three proxies. A candidate for akim of a city of regional significance, village, settlement, rural district may have no more than five trusted persons.
The registration of proxies of presidential candidates of the Republic of Kazakhstan and proxies of political parties is carried out by the relevant territorial election commissions.
Registration of proxies of candidates for deputies of the Senate of Parliament is carried out by regional (cities of republican significance and the capital) election commissions.
The registration of proxies of candidates for deputies of the Mazhilis of Parliament, elected by the Assembly of People of Kazakhstan, is carried out by the Central Election Commission of the Republic of Kazakhstan.
The registration of proxies of candidates for akims of a city of regional significance, village, settlement, rural district is carried out by the relevant district or city election commission.
Candidates for President of the Republic of Kazakhstan, after the Central Election Commission has established their compliance with the requirements of the Constitution of the Republic of Kazakhstan and the Constitutional Law, apply for registration of proxies to the relevant election commissions.
A candidate for deputy of the Senate of the Parliament, after the election commission establishes his compliance with the requirements of the Constitution of the Republic of Kazakhstan and the Constitutional Law, submits an application for registration of proxies to the relevant election commission.
Candidates for deputies of the Mazhilis of Parliament, elected by the Assembly of the People of Kazakhstan, after their registration by the Central Election Commission apply for registration of proxies.
A candidate for akim of a city of regional significance, village, settlement, rural district, after his registration by the relevant district or city election commission, applies for registration of proxies.
After the registration of party lists by the Central Election Commission for the election of deputies of the Mazhilis of Parliament and the territorial Election Commission for the election of deputies of maslikhats, political parties apply to the relevant territorial election commissions for registration of proxies.
The decision on registration or refusal to register proxies of candidates and political parties is made by the relevant election commission within two calendar days after receipt of the application and is formalized by the protocol of the election commission.
The relevant election commission issues certificates to the authorized representatives after registration.
The relevant election commission refuses to register or cancels the decision on registration of an authorized representative of a candidate or a political party in cases where the person:
1) is not a citizen of the Republic of Kazakhstan;
2) is a member of the election commission;
3) holds the position of a political civil servant in accordance with the Decree of the President of the Republic of Kazakhstan dated December 29, 2015 No. 150 "On Approval of the Register of Positions of Political and Administrative Civil Servants";
4) is a deputy of the maslikhat during the election of deputies to the Senate of Parliament, akim of a city of regional significance, village, settlement, rural district.
The decision to cancel the registration of proxies of candidates and political parties is made by the election commission within two calendar days from the moment of detection of the discrepancy and is formalized in a protocol, which is communicated to the candidate, political party, and precinct commissions within twenty-four hours.
The compliance of the proxy with the requirements of clause 4 of Article 31 of the Constitutional Law "On Elections in the Republic of Kazakhstan" is established on the basis of documents submitted by the candidate, the political party in accordance with clause 3 of the Instructions.
Proxies lose their status at the end of an election campaign, on their own initiative, by decision of a candidate and a political party, as well as in cases of cancellation of registration of a candidate, party list, or violation of Constitutional Law.
The objective side is expressed in actions aimed at obstructing the right of proxies of candidates, political parties, observers of political parties, other public associations, non-profit organizations of the Republic of Kazakhstan, media representatives to attend meetings of the election commission or to be present at the polling station on election day from the moment of its opening until the establishment of voting results during the counting of votes, or monitoring of the voting process, the procedure of counting votes and registration of voting results at the polling station, at the polling station, or being present during the opening and installation of electronic election system equipment, as well as during the verification of its operation in cases where such a right is provided for by law.
The subjective side of the offense is expressed in the form of direct intent.
Part 2. In paragraphs 2), 4), 6), 9), 10) Paragraph 2 of Article 20-1 of the Constitutional Law "On Elections in the Republic of Kazakhstan" stipulates that observers of political parties, other public associations, and non-profit organizations of the Republic of Kazakhstan have the right:
- receive information on the number of voters who took part in the voting, including voting outside the premises;
- accompany portable ballot boxes, including being in a vehicle during their transportation;
- appeal decisions, actions (inaction) the relevant election commission and (or) its members to a higher election commission or court;
- take photos, audio and video recordings without interfering with the voting process and summarizing its results;
- observe the procedure for transmitting protocols on voting results to higher election commissions.
Paragraph 5 of Article 31 of the Constitutional Law "On Elections" states that "trusted persons have the rights and duties of observers of political parties, other public associations, non-profit organizations of the Republic of Kazakhstan and act within the powers granted to them in writing by the candidate, the political party that nominated the party list."
The objective side of the offense is expressed in actions:
- to prevent the right of proxies of candidates, political parties, observers of political parties, other public associations, non-profit organizations of the Republic of Kazakhstan to accompany members of the election commission to organize voting outside the polling station, the presence of voters outside the polling station during voting, photo, audio and video recording, monitoring procedures for transmitting protocols on the results voting to higher election commissions;
- by refusing to receive information on the number of voters who took part in voting, including voting outside the premises, or appealing decisions, actions (inaction) of the relevant election commission and (or) its members in cases where such a right is provided for by law.
The subjective side of the offense is expressed in the form of direct intent.
The "special" subject of this offense is a member of the election commission.
Part 3. The object of the offense being commented on is the socio-legal relations that arise when trusted persons of candidates and political parties participate in the re-counting of votes in cases where such a right is provided for by law.
The objective side of this administrative offense is expressed in actions (and sometimes inaction) to refuse the proxies of candidates and political parties to re–count votes, provided that such a right is provided for by law.
In accordance with paragraphs 7-1 of Article 43 of the Constitutional Law "On Elections in the Republic of Kazakhstan", "the precinct election commission (the territorial election commission for the election of deputies of the Senate and deputies of the Mazhilis of Parliament elected by the Assembly of the People of Kazakhstan), at the request of a proxy submitted in writing, conducts a repeat vote count only once within the time limit set by paragraphs 1 and 2 of this Article".
The subjective side of the offense is expressed in the form of direct intent.
The "special" subject of this offense is a member of the election commission who refused to re–count votes to trusted persons of candidates and political parties.
Part 4. The object of the offense is the social and legal relations that arise during the exercise of the right of observers of foreign states and international organizations, representatives of foreign mass media to be present at all stages of the electoral process or to receive information from election commissions about the course of the election campaign, or access to polling stations during voting and vote counting, or meeting with participants electoral process, or giving public statements, or monitoring the procedures for transmitting protocols on voting results to higher election commissions in cases where such a right is provided for by law.
The objective side of the administrative offense being commented on is expressed in actions (inaction) to impede the right of observers of foreign states and international organizations, representatives of foreign media to be present at all stages of the electoral process or to receive information from election commissions about the course of the election campaign, or access to polling stations during voting and vote counting, or to meet with participants electoral process, or giving public statements, or monitoring the procedures for transmitting protocols on voting results to higher election commissions in cases where such a right is provided for by law.
In accordance with paragraph 6 of Article 20-2 of the Constitutional Law "On Elections in the Republic of Kazakhstan", "observers of foreign states and international organizations, representatives of foreign mass media have the right to:
1) be present at all stages of the electoral process;
2) to receive information about the course of the election campaign from the election commissions;
3) access to polling stations during voting and vote counting;
4) to meet with the participants of the electoral process;
5) inform members of election commissions about their observations, identified violations, and make recommendations;
6) make public statements;
7) observe the procedure for transmitting protocols on voting results to higher election commissions."
The Document of the Copenhagen Meeting of the CSCE (OSCE) Conference on the Human Dimension states that the presence of observers, both foreign and national, can enhance the credibility of the electoral process for the States in which elections are held. Therefore, they invite observers from any other OSCE participating States and any relevant private institutions and organizations that wish to do so to observe the course of their national elections to the extent permitted by law.
The subjective side of the offense in the commented article is expressed in the fact that it is committed intentionally.
The "special" subject of this offense is a member of the election commission.
In accordance with Part 1 of Article 805 of the Administrative Code, administrative offenses provided for in Article 126 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 126 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 126 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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
