| 16.11.2015 |
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The Central Election Commission of the Republic of Kazakhstan
Comment
by the Central Election Commission of the Republic of Kazakhstan
as of 6 October 2015 to the Final Report of the OSCE/ODIHR
Election Observation Mission at early presidential election
in the Republic of Kazakhstan, called on 26 April 2015
City of Astana 6 October 2015
The Central Election Commission of the Republic of Kazakhstan (hereinafter – the CEC RK) is grateful to the OSCE/ODIHR Election Observation Mission at early presidential election in Kazakhstan, called on 26 April 2015, that it implemented a lot of observation work in the country and that in its Final Report of 29 July 2015 it positively assessed the following aspects of the presidential election.
Extracts from the text of the Final Report of the Mission are given in Italics; the full options of abbreviations in the text are listed at the end of this Comment.
1. Following an invitation from the Ministry of Foreign Affairs of the Republic of Kazakhstan, the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) deployed an election observation mission (EOM) for the 26 April 2015 early presidential election. On election day, 291 observers from 36 countries were deployed throughout the country to observe opening, voting, counting and the tabulation of results. The OSCE/ODIHR EOM wishes to thank the authorities of Kazakhstan for the invitation to observe the election and the Central Election Commission, the MFA and other authorities for their assistance and co-operation. It also expresses its appreciation to the representatives of political parties, media, civil society, the international community and other interlocutors for sharing their views. The OSCE/ODIHR EOM also wishes to express its gratitude to the OSCE Programme Office in Astana for its co-operation and support (pages 1, 3).
It follows from this text of the OSCE/ODIHR Mission’s Final Report that the Republic of Kazakhstan has implemented its commitments within the paragraph 8 of Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE of 29 June 1990 (hereinafter – the Copenhagen Document), by inviting observers from other states and international organizations to observe the course of national election proceedings to the extent permitted by law.
2. Overall, the election was efficiently administered prior to election day. Preparations for the election were efficiently administered; all electoral deadlines were respected and election commissions, including the CEC, were generally transparent in their work. CEC sessions were open to observers, proxies and the media (pages 1, 7).
This high assessment by the OSCE/ODIHR Mission indicates that the Republic of Kazakhstan has clearly implemented requirements of paragraphs 5.1, 6 and 8 of the Copenhagen Document on the organization of free elections, observation of the course of national elections, guaranteeing the transparency of electoral process and the process of election administration.
3. The legal framework provides a technical basis for the conduct of elections. In 2014, the Election Law and other laws regulating aspects of the electoral process were subject to change. Amendments to the Administrative Offences Code provided more detailed definitions of electoral offences, and the CEC issued regulations on procedures for sealing ballots boxes and verifying signatures, partially addressing previous OSCE/ODIHR recommendations (pages 1, 5).
Thereby, the Republic of Kazakhstan has implemented obligations, stipulated by paragraphs 5.1, 5.7, 5.9, 5.10, 5.11, 6, 7.4, 7.7, 7.8, 7.9 of the Copenhagen Document, concerning proper conduct of election, establishment of adequate responsibility for violation of electoral legislation, ensuring the equal suffrage by secret ballot.
4. Each party or public association can nominate one member per commission (page 6).
By this statement the OSCE/ODIHR Mission underlines that the Republic of Kazakhstan has implemented the provisions of paragraph 7.6 of the Copenhagen Document by providing to political parties and organizations with the necessary legal guarantees to enable them to take part in organization of elections “on the basis of equal treatment before the law and by the authorities”.
5. Women represented more than half of the members and chaired more than a third of the TECs, DECs, and PECs visited by the OSCE/ODIHR EOM (page 6).
Thus, the Republic of Kazakhstan has implemented its commitments under paragraphs 40, 40.2, 40.4, 40.8, 40.10 of the Document of the Moscow Meeting of the Conference on the Human Dimension of the OSCE of 3 October 1991. In a whole in the country some 60 percent of women hold the positions of chairpersons, vice-chairpersons and secretaries of election commissions.
6. The CEC produced manuals and videos for training election commissions. More than half of the members of election commissions visited by the OSCE/ODIHR EOM were trained (page 7).
Thereby, the Republic of Kazakhstan has implemented its obligations under the paragraphs 7.3, 7.4 and 7.7 of the Copenhagen Document by constantly improving the professional level of election commissions’ members. The other half of members of election commissions were trained before and during election campaign.
7. The CEC also developed an extensive voter education programme, with television spots, billboards, and posters. A number of initiatives were launched to encourage voter participation, underlying the importance of a high turnout to ensure a strong mandate for the president (pages 7, 12).
This positive assessment of the OSCE/ODIHR Missions testifies that the Republic of Kazakhstan has brought to life the provisions of paragraphs 7.3, 7.4, 7.7 of the Copenhagen Document on the necessity to explain publicly the norms of electoral legislation.
8. There were over 9.5 million voters registered for the election. Voter registration is passive and most OSCE/ODIHR EOM interlocutors did not express concerns about the accuracy of voter lists. In an inclusive manner, voters could check their registration details and the location of their polling stations on the Internet or by calling special hotlines (pages 2, 7, 9).
This means that the Republic of Kazakhstan has fulfilled the provisions of paragraphs 5.7, 7.3 of the Copenhagen Document by guaranteeing the observation of universal active suffrage to all citizens.
9. Commendably, the CEC reduced the periods of issuing sheets from five to two days and for TEC verification of signatures from ten to five days. There was no deregistration of candidates in this election (pages 10, 11).
Accordingly, the Republic of Kazakhstan has taken measures to implement provisions of paragraph 7.6 of the Copenhagen Document by providing to candidates necessary time guarantees “to enable them to compete with each other on a basis of equal treatment before the law and by the authorities”.
10. In media monitored by the OSCE/ODIHR EOM, candidates were given even coverage. The campaign was visible in nationwide and local media. The Election Law requires media to present objective coverage of the campaign and guarantees candidates equal access to the media. Each candidate was granted, and made use of, funds for 15 minutes of airtime on television and 10 minutes on radio, as well as the publication of two articles in the press (footnote 50: Mr. Syzdykov and Mr. Kusainov used their television free air-time on Khabar TV at 11:00 in the morning on 16 and 17 April respectively, President Nazarbaev used it on Kazakhstan TV and Khabar TV at 21:30 (prime time) on the last day of the campaign, 24 April). The law provides the opportunity for paid advertising, without any limitation apart from those imposed by the overall campaign expenditure limit. The state-funded Kazakhstan TV and Khabar TV dedicated a comparable portion of political prime time news coverage to all three candidates, with 20 and 18 per cent to Mr. Syzdykov, 19 and 18 per cent to Mr. Kusainov and 15 and 14 per cent to Mr. Nazarbaev (pages 2, 16, 17).
This implies that the Republic of Kazakhstan has implemented its commitments under paragraphs 7.7 and 7.8 of the Copenhagen Document by ensuring conduct of political campaign in mass media in a free and fair atmosphere, by providing to voters the opportunity to learn freely the candidates’ views and qualifications as well as to discuss them, by ensuring unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process.
11. The law provides all electoral participants with rights of redress and appeal (page 2).
Thus, the Republic of Kazakhstan has fulfilled its obligations under paragraphs 5.1, 5.3, 5.5-5.19, 6, 7.7 of the Copenhagen Document by guaranteeing the proper legal protection to all stakeholders of electoral process.
12. In accordance with OSCE commitments, the Election Law provides for international and citizen observers, as well as authorized representatives of registered candidates (page 2).
By this statement the OSCE/ODIHR confirms that the Republic of Kazakhstan always implements the provisions of paragraph 8 of the Copenhagen Document by ensuring presence at elections of citizen and international observers, authorized representatives of registered candidates.
13. The Election Law guarantees equal public campaign funds for each candidate. Private financing is also permitted including from the candidate’s own funds, donations made by citizens and legal entities, and funds allocated by the candidate’s nominating body (page 13).
As you can see, the Republic of Kazakhstan has realized the provisions of paragraphs 7.3 and 7.8 of the Copenhagen Document on equal suffrage and unimpeded access of all candidates to the media.
14. Election day generally proceeded in an orderly manner (pages 3, 19).
This positive assessment of the OSCE/ODIHR Mission means a lot since the day of election represents a culminating point of the electoral campaign. It follows from this assessment that the Republic of Kazakhstan has ensured implementation of provisions of paragraphs 4, 5.1, 6, 7.3, 7.4, 7.7 of the Copenhagen Document by respecting the citizens’ right to chose and develop freely their political system under conditions which ensure in practice the free expression of the opinion of the electors in the choice of their representatives, which is the basis of the authority and legitimacy of any government.
15. The opening of polling stations was assessed as good or very good in all but three observations. The greater part of opening procedures were followed (page 19).
Thus, the Republic of Kazakhstan has implemented its obligations under paragraphs 6, 7.1, 7.3 of the Copenhagen Document by respecting the rights of its citizens to take part in the governing of their country through representatives freely chosen by them through fair electoral process.
Summing up the above mentioned, the OSCE/ODIHR Mission recognizes that Kazakhstan has implemented its international commitments on the 15 main aspects of the past presidential election.
However, the Central Election Commission of the Republic of Kazakhstan does not fully agree with the given below critical observations of the OSCE/ODIHR Election Observation Mission at early presidential election and in this regard it presents its arguments on them.
I. Executive Summary
1. Preparations for the 26 April election were efficiently administered, however, necessary reforms for holding genuine democratic elections still have to materialize (page 1).
The CEC RK standpoint. Presidential election in Kazakhstan was held transparently and openly and complied with all principles of electoral law. Above the record level the high voter turnout evidenced the unprecedented level of civil and political activity of citizens.
By the opinion of observers of international organizations (Commonwealth of Independent States, Shanghai Cooperation Organization, Parliamentary Assembly of Turkic-Speaking Countries, Cooperation Council of Turkic-Speaking States) and foreign states the early presidential election was held in democratic situation, was consistent with national law and international standards on elections. Some occurred shortcomings were technical in nature and do not affect the overall process of voting, counting and tabulation.
However, in 2017 it is planned to amend the election law in order to address the legal gaps identified at several recent elections as well as a number of recommendations of international organizations, including the OSCE.
2. There were no women candidates for president, although there were two nominees (page 2).
The CEC RK standpoint. It is true that there were two women – Limana Koishieva and Aigul Utepova – among nominated candidates to President. Both women as well as all candidates were given equal rights and opportunities to stand for election. L. Koishieva passed the language test, while eight male contesters failed to pass this language test, but she was unable to collect the required number of signatures in her support in signature sheets. A. Utepova voluntary withdrew her application, which is in accordance with article 60 of the Constitutional Act on Elections. Thus, the fact that the nominated female candidates were unable to be registered as candidates and to take part in elections is not a manifestation of any discrimination or prejudice.
3. The lack of comprehensive campaign coverage in the media considerably limited the opportunity for voters to make a well-informed choice (page 2).
The CEC RK standpoint. This critical observation contradicts to the above-mentioned statement of the OSCE/ODIHR Mission that “the campaign was visible in nationwide and local media”. Now the Mission alleges the opposite. The statements by the observers of other international organizations and foreign states noted the extensive coverage by Kazakhstani mass media of the campaigning of all three candidates, which provided voters with the opportunity to make a well-informed choice.
III. Background and Political Context
4. The predominant position of the incumbent and the lack of genuine opposition limited voter choice. The incumbent and his political party dominate politics and there is lack of credible opposition in the country, with several prominent critics of the government either imprisoned or living in exile. The current consolidation of political power threatens the development of political pluralism, as committed to in the 1990 OSCE Copenhagen Document. Several OSCE/ODIHR EOM interlocutors stated that Kazakhstan’s policy of ensuring stability and economic prosperity prevails over the protection of fundamental freedoms. This de facto results in a monopoly of political power and there is lack of a genuine opposition in the country, with several prominent critics of the government either imprisoned or living in exile. The current consolidation of political power threatens the development of genuine political pluralism, as committed to in the 1990 OSCE Copenhagen Document (footnote 5: In paragraph 3 of the 1990 OSCE Copenhagen Document participating States “reaffirm that democracy is an inherent element of the rule of law. They recognize the importance of pluralism with regard to political organizations”) (pages 1, 4).
The CEC RK standpoint. According to the results of sociological survey of one of the largest world research companies Ipsos MORI, which was held during preparation of presidential election, 91 % of respondents in Kazakhstan were satisfied with the policy of the incumbent president. Against the background of unfavourable situation in the world, voters casted their votes for the stability and prosperity of Kazakhstan, which is not only consistent with the policy of President N.A. Nazarbayev, but also was a basis for ensuring and protection of fundamental human rights and freedoms. And it does not mean that critics of incumbent president cannot express openly their opinions and the citizens of the country cannot be acquainted freely with alternative political views. A culture of public discussion of the most important questions of politics and economics has been formed in the country, oppositional prints are freely available for sale and Internet access is available to almost every citizen of Kazakhstan. Moreover, the current government has always listened to the constructive proposals of the opposition and put them into action. Representatives of the “opposition” have been imprisoned for criminal offenses; and “living in exile” “critics of the government” were not actually been exiled, but voluntary and hurriedly left the country after revealing the scandalous corruption crimes committed by them and only abroad started to actively criticize the government. Thus, operating in Kazakhstan pragmatic political power does not prevent the development of political pluralism but takes into account the various opinions and seeks to realize the valuable suggestions to life. Clause 2 of article 1, clause 1 of article 5 of the country’s Constitution the resolution of the most important issues of the affairs of state by democratic methods is enshrined as the fundamental principle of the activity of the Republic of Kazakhstan, which recognizes the ideological and political diversity. And these constitutional provisions have been strictly implemented and realised in the last presidential election.
5. The incumbent and his political party dominate politics. Despite having three parties in the parliament and six other registered political parties, the President and Nur Otan dominate national politics (pages 1, 4).
The CEC RK standpoint. Indeed, the party “Nur Otan” is the largest political organization, having majority in the parliament, actively expanding its organizational structure and being in permanent search of the ways to increase its electorate. The electorate supports the party “Nur Otan” because it has proved itself as a party, which really facilitates by its active work the increasing the welfare level of the citizens of the Republic. Other parties have all the opportunities for the effective activity, including in elections, in the work of election commissions and in other political processes. In any case, the main assessment of the activities of these parties must be done by electors, who voted for them in the last elections.
6. No new party has been registered since 2007, while in 2013 the Rukhaniyat party was officially merged with the Birlik party (page 4).
The CEC RK standpoint. Since 2007 there were efforts to register new political parties (parties “Alga”, “Atameken”, “Khalyk Rukhy”) but initiators made a number of irregularities in the lists of party members: the presence of under-age persons, inclusion in the lists of persons without their consent as well as those, who left for permanent residence abroad, the dead and non-existent persons. At present, on the basis of the public association “Society of Young Professions of Kazakhstan” creation of “United Multinational Party of Kazakhstan “Justice” is initiated. In April 2013 parties “Rukhaniyat” and “Adilet” on the voluntary basis took a decision to merge in the party “Birlik” in order to strengthen its political position and to extend its electoral base. Thus, the right of citizens to freedom of association is respected in Kazakhstan as well as the provisions of clause 1 of article 5 of the country’s Constitution to maintain the ideological and political diversity are implemented.
7. In 2012, the leader of the unregistered opposition Alga party was sentenced to seven-and-a-half years in prison on criminal charges of “inciting social discord”, and the activities of the party were banned (page 4).
The CEC RK standpoint. Leader of unregistered party “Alga” Vladimir Kozlov was recognized by the court of Almaty city as guilty for commitment of grave criminal actions associated with Zhanozen events entailed the loss of life, riots, violence, pogroms, arson, destruction of property and violent confrontation with the representatives of authorities (in varying degree more than 180 objects were destroyed, the damage was amounted of KZT 3 BN or more than USD 20 MN). The court sentence was upheld in all court instances.
According to the verdict of Almaty city court of 20 November 2012 the activity of unregistered party “Alga” was of extremist nature. The court findings were proved by conclusions of a number of complex forensic examinations. Recognition of organization as extremist was carried out in the court (clause 1 of article 8 of the Law of the Republic of Kazakhstan of 18 February 2005 “On Countering Extremism”).
8. On 25 December 2014, the Almaty Economic Court ordered the suspension of the Communist Party of Kazakhstan’s (CPK) activities (footnote 4: The suspension was initiated by the Ministry of Justice based on complaints from regional leaders of the Communist Party of Kazakhstan (CPK) that the membership list included inaccuracies) (page 4).
The CEC RK standpoint. Due to differences in the views of party members on the working methods the Communist Party was faced with difficulties in its work. On the basis of the requests of the heads of several regional branches of the Communist Party of Kazakhstan (CPK), the Ministry of Justice had audited the number of party members, as a result of which it was found that the party’s membership number falls short of the required by the legislation 40 thousand persons. Based on the audit results the by the decision inter-district economic court of Almaty of 25 December 2014 the activities of the Communist Party were suspended for three months. Everything was done in strict compliance with the existing legislation.
It was a mistake in footnote 4 of the official Russian translation of the OSCE/ODIHR, wherein the Communist People’s Party of Kazakhstan, party is indicated, which has no relation to the filing of suits against the Communist Party of Kazakhstan. The Communist Party of Kazakhstan (CPK) and the Communist People's Party of Kazakhstan (CPPK) are different political parties operating in Kazakhstan.
9. Azat and the National Social Democratic Party (NSDP) decided not to field a candidate for this election (page 4).
The CEC RK standpoint. The right to participate or not participate in presidential elections is a purely internal right of political parties. The government does not have the right to force or impose sanctions in respect of the parties boycotting the presidential election.
IV. Electoral System and Legal Framework
10. A 2010 amendment exempts the incumbent from the constitutional limit of two consecutive terms. There is a constitutional limit of two consecutive terms that can be served by any one individual. This restriction does not apply to the incumbent, as the First President (footnote 6: Article 42.5 of the Constitution, introduced in 2007; Article 53.3 of the Election Law and Article 1 of the Law on the First President - Leader of the Nation, both amended in 2010) (pages 1, 4-5).
The CEC RK standpoint. The constitutional status of the First President – Leader of the Nation is established by the Constitutional Act of the Republic of Kazakhstan of 20 July 2000. Amendments to clause 5 of article 42 of the Constitution of the Republic of Kazakhstan, introduced in 2007 (not in 2010, as it is stated by the OSCE/ODIHR Mission), which exempted the First President - Leader of the Nation from the constitutional limit to be elected for two consecutive terms, does not contradict to the provisions of paragraph 7.5 of the Copenhagen Document, as they do not limit the voting rights of the other candidates, do not provide the First President with any privilege in the election campaign, do not infringe upon the free will of the citizens, do not affect the process of voting, counting and tabulation.
11. The legal framework provides a technical basis for the conduct of elections, but undue restrictions on fundamental freedoms of assembly, association and expression, contradict key OSCE commitments for democratic elections The shortcomings identified in this report, including undue restrictions on fundamental freedoms of assembly and expression, underscore the need for further legal reform to provide necessary conditions for the conduct of democratic elections in line with OSCE commitments and other international obligations and standards (footnote 9: Paragraph 4 of the 1990 OSCE Copenhagen Document commits participating States to “ensure that their laws, regulations, practices and policies conform with their obligations under international law and are brought into harmony with the provisions of the Declaration on Principles and other [O]SCE commitments”) (pages 1, 5).
The CEC RK standpoint. The Law “On the organization and conduct of peaceful assemblies, rallies, marches, pickets and demonstrations in the Republic of Kazakhstan” dated 17 March 1995 guarantees the freedom of peaceful assembly. The requirement to obtain a permit for rallies is a reasonable restriction, because the uncontrolled use of the rights of some people could lead to a massive violation of the rights of others. Also it should be noted that international legal instrument - the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985) provides for certain restrictions of peaceful assembly that are introduced for the purposes of ensuring public order, public health and protection of the rights and freedoms of others. The right to freedom of association is also respected in Kazakhstan. The requirement of at least 40 thousand members and at least in all oblasts, the city of republican status and the capital is dictated by the fact that the parties express social and political interests of their electorate and must be competitive in the election. Small parties have little chance of getting elected seats in the government. In Kazakhstan, the political parties have the right to nominate candidates to any elective office as well as the exclusive right to nominate lists of candidates for election to the Mazhilis of Parliament. Thus, in Kazakhstan the right to freedom of association is implemented in strict accordance with the requirements of the international instruments on this subject.
12. Previous OSCE/ODIHR recommendations remain unaddressed in the Election Law, including key provisions related to the composition of election commissions, candidate registration, and the complaints and appeals process. Further reform is needed to bring legislation in line with OSCE commitments and other international obligations and standards for democratic elections. Amendments to the Election Law and other laws did not address previous OSCE/ODIHR recommendations, including on freedoms of expression, assembly and association, the formation of election commissions, removal of restrictive candidate registration requirements, and clarification of complaints and appeals processes (pages 1, 5).
The CEC RK standpoint. Out of the 21 recommendations contained in the Final Report of the OSCE/ODIHR Mission on observation of the presidential election of 3 April 2011, 12 recommendations (including 7 in part) did not require implementation as they have been implemented in the existed at that time legislation of Kazakhstan. 5 recommendations cannot be implemented as they contradict to the constitutional norms of Kazakhstan and do not arise from the provisions of the OSCE Copenhagen Document. The CEC RK believes that the three recommendations had been implemented during the last presidential election (on the criteria for assessment of proficiency in the state language, verification of voter signatures, guidelines for election coverage in the media, exclusion of voters registered at special polling stations from the lists at polling stations at the place of their residence). 2 recommendations (on introduction of changes to the electoral legal framework with the aim to eliminate the excessive restrictions on the right to be elected and on reducing the amount of compensation and the limitation period for libel) are under consideration.
In 2017, introduction of changes and additions to the election legislation, including the OSCE/ODIHR recommendations, is expected. However, the CEC RK has implemented a number of the OSCE/ODIHR recommendations, through its resolutions.
13. The special legal status and protection enjoyed by the president limits the possibility of a level playing field, as required by OSCE commitments (footnote 7: Amongst others, this also includes the ability to challenge results and the inviolable protection of the president’s honour and dignity. Paragraph 7.6 of the 1990 OSCE Copenhagen Document commits participating States to provide “the necessary legal guarantees to enable [electoral contestants] to compete with each other on a basis of equal treatment before the law and by the authorities”. See also Article 25 of the International Coven ant on Civil and Political Rights (ICCPR) and Article 2(b) of the Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (CIS Convention)) (pages 1, 5).
The CEC RK standpoint. The incumbent President has the status of Leader of the Nation, which he deservedly got thanks to the successful implementation of economic and social policies. This provision, which is contained in the Constitution, does not provide additional benefits to the First President in the election campaign, but on the contrary, raises the bar for political competition.
Therefore, we believe that a special legal status and protection enjoyed by the President, does not limit the ability to ensure equal conditions and is in line with paragraph 7.6 of the OSCE Copenhagen Document.
In addition, international instruments (International Covenant on Civil and Political Rights of 16 December 1966, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE of 29 June 1990, Charter of Paris for a New Europe of 21 November 1990, Declaration of the Istanbul Summit of 19 November 1999, Charter for European Security of 19 November 1999, Convention on the Standards for Democratic Elections, Electoral Rights and Freedoms in the CIS participating States of 7 October 2002) do not contain provisions on the prohibition of the legal recognition of the outstanding state persons, on prohibition of nomination of one person more than two times for elective public office.
14. CEC regulations did not adequately address areas that are not fully regulated in the Election Law or provide additional clarity where the law did not sufficiently elaborate procedures, including on candidate registration and election day. The lack of clarity contributed to an inconsistent implementation of procedures by election commissions (page 5).
The CEC RK standpoint. The OSCE/ODIHR Mission does not specify which procedures for registration of a candidate and election day procedures are not adequately addressed in the electoral law and require the CEC regulations (see articles 38, 39, 40, 41, 42, 43, 44 of the Constitutional Act on Elections).
V. Election Administration
15. The Election Law does not effectively provide for balanced political party representation in the mid- and lower-level commissions. Although each party or public association can nominate one member per commission, Maslikhats are not bound by these nominations (footnote 11: For example, across the country, NSDP had only 115 commission members from the 3,397 it nominated and held no chairperson, deputy or secretary position. Another example is in Almaty City where the Maslikhat appointed the newly established Nauryzbai DEC and members for 42 PECs - six political parties (Ak Zhol, Auyl, Birlik, CPPK, Nur Otan, and PPK) and two public associations (Afghan War Veterans Union and Centre for Civic Initiative) nominated candidates that were accepted, but all NSDP and Afghan War Veterans Union nominations were rejected. Also in Almaty region, CPPK had no chairperson position out of the 729 commissioners appointed). Moreover, the Election Law allows a member of one organization to be nominated by another organization. In practice, many commission members visited by the OSCE/ODIHR EOM were de facto affiliated with Nur Otan, which also held almost all chairperson positions (footnote 12: The OSCE/ODIHR EOM was made aware that commissioners were members of Nur Otan, while being nominated by other organizations, in several commissions: all 7 members in 1 TEC, 4 DECs and 3 PECs; 6 members in 4 DECs and 1 PEC; 5 members in 1 TEC, 2 DECs and 5 PECs; 4 members in one TEC, 2 DECs and 2 PECs; 3 members in 4 DECs and 3 PECs. The chairperson, deputy and secretary in TEC Zhambyl were Nur Otan members, although nominated by other representatives, so were the chairperson and deputy chairperson in TEC Kyzylorda). This raised concern about the impartiality of the lower levels of election administration, challenging international standards (footnote 13: Paragraph 20 of the 1996 United Nations Human Rights Council (UNHRC) General Comment No. 25 to Article 25 of the ICCPR requires that “[a]n independent ele ctoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant”. Section 2. 3.e. of the 2002 Council of Europe Commission for Democracy through Law (Venice Commission) Code of Good Practice in Electoral Matters recommends that “Political parties must be equally represented on e lectoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis”). Further, a number of the commissioners met with by the EOM were not aware of which organization nominated them, of their listed party affiliation, or how the appointment process was conducted (pages 1, 6).
The CEC RK standpoint. Constitutional Act on Elections guarantees the representation of political parties in election commissions, but cannot oblige them to nominate their representatives in the election commissions, because the party is not a state structure but a public association. Therefore, ensuring representation of parties in election commissions is the prerogative of the party itself.
Of 93,149 members of election commissions 85.2% are representatives of political parties, 13.4% of other public associations and 1.4% are temporarily appointed by higher election commissions. At the same time representation of the party “Nur Otan”, KSDP “Aul”, DPK “Ak Zhol”, “Birlik”, CPPK, Patriots of Kazakhstan is approximately equal (12-13%). Representation of the CPC and the ANSDP is lower because these parties offered a small number of representatives and not in all regions. DPK "AZAT" did not nominate their representatives. For example, during formation of 43 election commissions of Nauryzbay district of Almaty city political parties submitted 281 candidates, instead of the required 301 (RPA “ANSDP” offered only 23 candidates, instead of the required 43), in regard additional candidates from two public associations (“Center for Civil Initiatives” and "Society of veterans and disabled persons of the war in Afghanistan” “Ardager”) were included.
According to clause 3 of article 10 of the Constitutional Act on Elections in case of the absence of proposals from political parties within a timeframe set by maslikhat, which shall not be less than one month before the date of formation of election commissions, maslikhat shall elect the election commission based on the proposal of other public associations and higher election commissions. The above-mentioned circumstances evidenced the compliance of maslikhats with the requirements of legislation on providing equal electoral rights, corresponding to the constitutional principles.
Chairperson, vice-chairperson and secretary of the election commission are elected by the members of the election commission at the first session of election commission without participation of maslikhats. Therefore, the reprimand by the OSCE/ODIHR Mission that in the Almaty oblast Communist People’s Party of Kazakhstan had no chairperson position in election commissions and that the balanced political party representation in the mid- and lower-level commissions was not provided is unfounded.
It should be noted that maslikhat in the election of members of election commissions is not eligible to request the submission of documents, confirming their membership in political parties. The process of nomination is held transparently, in compliance with electoral legislation. The fact that some members of the commission did not know how the process of their nomination is held does not testify that all 93,149 members of election commissions elected in March and April 2014 do not know this procedure.
Due to the absence of members of this or that party in a number of regions of the country, the country’s legislation does not contain a limitation for the delegation in the ranks of the election commissions’ members of representatives of one party by another party. Therefore, it is quite logical that the party “Nur Otan”, being the most active party with lots of members, has the largest representation in the election commissions.
16. The CEC produced manuals and videos for training election commissions. More than half of the members of election commissions visited by the OSCE/ODIHR EOM were trained. However, election commissions had varied interpretations of the law due to a lack of practical training programmes, detailed instructions and procedural clarifications, particularly on candidate signature verification, the recording of Absentee Vote Certificates (AVCs), counting and tabulation of results, and observer access to all aspects of the electoral process. Also, the transparency of the process and the effectiveness of the CEC’s supervision was limited by the lack of centrally gathered data on the composition of the commissions and other important elements, such as the number of AVCs issued, the number of observers, as well as counting and tabulation results (pages 1, 7).
The CEC RK standpoint. During the preparation and conduct of election, the CEC RK has developed a wide variety of manuals, brochures, posters and other printed materials. These included preparation of training manuals for the territorial and precinct election commissions, which have sections: “Organization of voting”, “Procedure for obtaining ballot paper and voting”, “Voting with absentee vote certificate”, “Voting outside the polling station” and “Vote count at the polling station”, spelled out all the key moments of the day of election, vote count and tabulation.
The CEC RK Resolution of 9 March 2015 No. 3/10 set criteria for recognition of invalid signatures in the course of verification of signature sheets, which also must be considered as detailed guide for the verification of signatures. Furthermore, guidelines for tabulation were contained in the manual for territorial election commissions on the preparation and holding of presidential election as well as in the forms of election documents, approved by the CEC RK Resolution of 26 February 2015.
The prepared by the CEC RK training film in an amount of 10,665 copies, which step by step clarified the procedure of voting and vote count at the polling station, was sent to all territorial and precinct election commissions.
The CEC RK conducted a systematic and continuous work on the legal training of election officials and the country’s population by providing the lower-level election management bodies with required organizational, methodological and information assistance and support. Thus, in March and April with the participation of the CEC members seminars were held on preparation and holding of elections in Almaty, Akmola and South-Kazakhstan oblasts. Similar seminars were held in Aktobe, Almaty, Akmola, Zhambyl oblasts, in the cities of Astana and Almaty.
During the above-mentioned events the precise and detailed instructions and explanations on procedures, in particular with regard to vote count and tabulation of results by the District Election Commissions, were given.
17. Superior election commissions can also appoint temporary replacements to fill vacant positions until new commission members are appointed. The Election Law does not specify the criteria for such temporary replacements, nor require that the replacement comes from the same organization. In commissions visited by the OSCE/ODIHR EOM, more than a fifth of the members appointed in 2014 were replaced this year (page 7).
The CEC RK standpoint. In March and April 2014 at the sessions of maslikhats in connection with the expiry of the term of office all 93,148 members of election commissions were elected. All replacements were carried out in a strict accordance with the requirements to the members of election commissions, contained in article 19 of the Constitutional Act on Elections, which are the criteria for such temporary replacements. Almost one fifth of the members have been replaced exclusively on the grounds specified in clause 6 of article 19 of the Constitutional Act on Elections.
18. More than half of the election commissions visited by the OSCE/ODIHR EOM were located in local government buildings and the leadership of more than a third of the PECs visited were also supervisors of the commission members in their regular jobs (footnote 14: For example, PECs located in schools, often included the school director as chairperson and teachers as members. This was the case in about 20 per cent of the entire Pavlodar region but in some areas of Pavlodar such as Lebyazhi District it reached 60 per cent). This could affect the independence of election commissions’ activities, as commissioners could face potential conflict of interests (page 7).
The CEC RK standpoint. Education organizations, including schools, are not local governments, as they are not part of the state apparatus and do not exercise public authority. Location of polling stations in the school building is a widely common international practice, which is nowhere is considered as a threat to the independent activity of the election management bodies. Clause 12 of article 20 of the Constitutional Act on Elections clearly states that members of election commissions cannot be members of local representative and self-government bodies, political civil servants, judges, relatives, persons who are directly subordinated to candidates for elective office. Thus, the grounds for ensuring the independence of election management bodies are legally set.
Members of election commissions are also independent from the executive bodies in financial matters. In addition, the law establishes criminal (article 150 of the Criminal Code of the Republic of Kazakhstan), administrative and legal responsibility (article 105 of the Code of the Republic of Kazakhstan on Administrative Offences) for interfering with the work of election commissions, which is a legal guarantee of their impartiality.
Therefore, the critical observation of the OSCE/ODIHR Mission that the independence of election commissions was questionable and that it could face conflict of interests between the members of election commissions is unfounded.
VI. Voter Registration
19. However, there are no uniform means of collecting data for voter lists and procedures for cross-checking lists did not sufficiently guard against multiple entries. Nevertheless, after the CEC verification against possible multiple registrations, there was no centralized cross-checking mechanism to ensure that a voter is only on one voter list as required by law, weakening the integrity of voter lists (footnote 20: Article 25.3 of the Election Law stipulates that “… citizen can be enrolled only in one voter register”. Paragraph 21 of the 1996 UNHRC General Comment No. 25 to the ICCPR states that “the principle of one person, one vote must apply”. See also paragraph 7.3 of the 1990 OSC E Copenhagen Document). In addition, there is no post-election audit of the voter lists to identify possible incidents of multiple voting, particularly from special polling stations (pages 2, 9).
The CEC RK standpoint. Constitutional Act on Elections clearly regulates the procedure for compilation of voter lists, which are formed on the basis of voter registration by a place of residence in the territory of the polling station (this is a uniform means of compilation of lists). A citizen may be included only in one voter list. In addition, in order to prevent duplicate entries in the voter lists, the CEC RK twice a year and on the eve of the election cross-checks the electronic register of voters.
Voter lists were available for public scrutiny in the premises of precinct election commissions across the country, where every citizen can check information about themselves and to appeal the non-inclusion, wrong inclusion in the list or exclusion from the list as well as inaccuracies in the data about the voter in the voter list.
Also, during the election campaign, numerous measures to improve the voter lists were taken in cooperation with local authorities. Voters had the opportunity to check availability of their names in the voter lists on the web portal of the local executive bodies as well as through 423 specialized call-centers in all regions of the country.
In order to ensure the accuracy of voter lists the CEC RK is planning adopt the Resolution “On approval of instructions for making corrections (inclusion, exclusion, changes in the data on voters) in the list of voters”, “On the recommendations of the Central Election Commission of the Republic of Kazakhstan for the compilation of voter lists”.
26. The blanket denial of voting rights of those serving prison sentences or declared incompetent lacks proportionality, at odds with OSCE commitments and other international standards. All citizens over 18 years of age have the right to vote, except those declared mentally incompetent by a court or those serving prison sentences, irrespective of the gravity of the crime. The blanket denial of voting rights to all those imprisoned or declared mentally incompetent is an unreasonable restriction that is at odds with international obligations and OSCE commitments (footnote 15: Paragraph 7.3 of the 1990 OSCE Copenhagen Document states that the participating States will “guaran tee universal and equal suffrage to adult citizens”, while Paragraph 24 provides that restrictions on rights and freedoms must be “strictly proportionate to the aim of the law”. Paragraph 14 of the 1996 UNHRC Genera l Comment No. 25 to the ICCPR states that grounds for deprivation of voting rights should be “objective and reasonable”. Article 29 of the 2006 UN Convention o n the Rights of Persons with Disabilities (CRPD) requires states to “guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others”) (pages 2, 8).
The CEC RK standpoint. This limitation is not considered to be contrary to international norms and the OSCE principles. This requirement meets the vital need for the state and society, pursues a legitimate aims and is proportionate to these aims. Passive suffrage is not an absolute human right, derogation from which is not allowed under any circumstances (see clause 2 of article 4 of the International Covenant on Civil and Political Rights of 16 December 1966). The State may impose restrictions on the right to be elected in order to prevent the coming to power of persons posing a threat to society and the state.
According to Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (UN Document E/CN.4/1985/4), paragraph 24 of the OSCE Copenhagen Document the grounds for restrictions are a threat to democratic society, public order, health or morals, national and public security, rights and freedoms of other persons, which are provided by law and consistent with obligations under international law.
A criminal record is a basis for restricting passive suffrage in 46 countries, including countries with developed democracies. Commitment of a criminal offense is a ground for restricting passive suffrage in 82 countries, including developed democracies (UK, Canada, France, Latvia, Lithuania, Slovakia).
In this regard, we believe that in the Republic of Kazakhstan all citizens are guaranteed with the right to vote and to be elected, with the exception of persons who are convicted for commitment of crimes. This situation is consistent with international norms and obligations of the Republic of Kazakhstan and international practice.
21. Voter registration on election day is not in line with good practice and could result in multiple voter registrations (footnote 17: Section 1.2.iv of the 2002 Venice Commission’s Code of Good Practice in Electoral Matters recommends that “there should be an administrative procedure - subject to judicial control - or a judicial procedure, allowing for the registration of a voter who was not registered; the registration should not take place at the polling station on election day”) (page 8).
The CEC RK standpoint. According to clause 3 of article 24 of the Constitutional Act on Elections the basis for inclusion of a citizen in the voter list at a particular polling station is the fact of his/her residence registration in the territory of this polling station.
On election day, for the first time the mechanism of prompt communication of members of precinct election commissions with clerks of Citizen Service Centers (CSC) was introduced in order to ensure the free exercise by citizens of their right to vote. This allowed verification of the fact of voter registration in a place of residence and inclusion of him/her in the voter list on the day of voting directly.
Thus, the measures to ensure universal suffrage of citizens were taken. No evidence of multiple voting by persons included in the voter lists on election day was revealed.
22. The CEC did not collect or publish information on the number of AVCs issued or used on election day, limiting transparency. In eight per cent of polling stations observed, PEC members failed to retain the AVC to safeguard against multiple voting and in 33 cases did not count the number of AVCs used (pages 8-9).
The CEC RK standpoint. According to clause 16 of the CEC RK Resolution of 8 April 2009 No. 161/306 “On approval of Rules for issue and accounting of absentee vote certificates” district, city, district in city election commissions shall submit reports on the use of absentee vote certificates to the appropriate oblasts, Astana and Almaty election commissions with the application of acts of the cancellation of unused absentee vote certificates. Also, the report on the vote results contains a column, where the amount of voters who voted with absentee vote certificates is indicated. That is, contrary to the OSCE/ODIHR Mission, accounting of the number of issued or used absentee vote certificates was conducted.
According to official information of regional election commissions of the North-Kazakhstan oblast (ref. No. 61 of 10 September 2015), Kyzylorda oblast (ref. No. 02/208 of 10 September 2015), Kostanay oblast (ref. No. 54 of 15 September 2015), Aktobe oblast (ref. No. 46 of 11 September 2015) as well as all other oblasts, cities of Astana and Almaty, they have not received any written or oral complaints regarding accounting and count of absentee vote certificates from observers of the OSCE/ODIHR Mission.
23. The deadline for finalizing these voter lists (the day before election) is inconsistent with the timeline for ballot distribution (several days before election), effectively meaning that PECs might not have sufficient ballots to issue to voters on election day (footnote 19: For example, the ballots for the out-of-country polling stations were sent three-four days prior to election while each polling station is supposed to be provided as many ballots as registered voters plus one per cent extra) (page 9).
The CEC RK standpoint. We consider the OSCE/ODIHR Mission’s opinion as erroneous, because the precinct election commissions had a sufficient number of ballots on election day. Ballots, in accordance with clause 3 of article 37 of the Constitutional Act on Elections, are delivered to election commissions no later than one day before the election. Delivery of ballots to polling stations, formed in foreign institutions of the Republic of Kazakhstan, three or four days before the election was carried out in a strict accordance with the requirements of this provision of the law. Any fact on the lack of the sufficient number of ballots for the issuance to voters on election day in these polling stations has not been reported. An additional one percent of the ballots, delivered with the main number of ballots, ensured the accurate work of precinct election commissions on election day in order to avoid a question of a shortage of ballots.
VII. Candidate Registration
24. The application of a language test for candidates had a negative impact upon the inclusiveness of the candidate registration process. Of 27 nominees, 15 did not take the mandatory language test or failed to pass it. There were no clear criteria for evaluating the language test, leaving assessments to the discretion of the CEC appointed Linguistic Commission. The Rules of Procedures of the Linguistic Commission do not indicate how many mistakes are allowed or what precisely constitutes a mistake (footnote 25: Paragraph 3 of the 1996 UNHRC General Comment No. 25 to the ICCPR states that “no distinctions are permitted between citizens in the enjoyment of these rights on the grounds of… language”. Article 2.b of the 2002 Commonwealth of Independent States Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms (CIS Convention) states that “t he right of a citizen to elect and be elected... shall be given effect without any limitations of discriminatory nature on the basis of… language…”). Several nominees informed the OSCE/ODIHR EOM that they felt the assessment criteria were discretionary and that the Commission went beyond legal requirements in evaluating the nominees’ style and knowledge of different subjects (footnote 26: A nominee informed the OSCE/ODIHR EOM that he failed the test with 22 mistakes, 6 were on the essay, and others were stylistic. However, the Linguistic Commission informed the EOM that up to eight mistakes are allowed on the essay and the other two parts are evaluated pass/fail. The same nominee passed the same test with no mistakes in 2005 and failed it in 2011. The Constitutional Council defined the constitutional phrase “proficiency in state language” as the “ability read and write correctly, express one’s idea with ease and make to public speech in Kazakh language”). It is also not clear what accommodation would be made for persons with physical or sensory disabilities (footnote 27: Paragraph 41.1 of the 1991 OSCE Moscow Document commits OSCE participating States “to ensure protect ion of the human rights of persons with disabilities”. See also Article 29 of the 2006 CRPD) (pages 2, 10).
The CEC RK standpoint. The criteria for the language skills of candidates are written in the CEC RK Resolution of 31 August 2005 No. 12/26 “On the procedure for the establishment of fluency if state language by a candidate to President of the Republic of Kazakhstan”.
The Resolution of the Constitutional Council of the Republic of Kazakhstan of 9 October 998 No. 9/2 “On official interpretation of clause 2 of article 41 of the Constitution of the Republic of Kazakhstan” specifically determined that the norm “fluent in the state language” should be understood as the ability to competently read, write, easily, without difficulty to express their thoughts and to speak publicly in the Kazakh language. This should be attributed to the criteria of assessment knowledge of candidates to president of the state (Kazakh) language.
Mistakes made during the exam were regularly brought to the attention of contenders and the media.
Stylistic errors were taken into account because their making did not specify, did not deepen the thought, but led to understatement, a lack of understanding by a reader. The fact that a contender, who passed a positive examination in the state language in 2005, and then did not pass the exam in 2011, can be attributed to various reasons, including the difference in which he/she had done: as any person he/she had known some topics better and some - worse.
Linguistic Commission did not exceed the legal framework in assessing the style and knowledge. If a contender was clearly beyond the topic of conversation, the commission recommended him/her to be closer to the subject. After all, it is possible to learn one topic and articulate it with any proposed topic, and it would be wrong.
Persons with disabilities were able to pass exam on the equal grounds with other contenders.
25. Additional restrictions on the right to be elected, including residency requirements and the exclusion of all persons with a criminal record irrespective of the gravity of the crime, are contrary to OSCE commitments and other international standards for democratic elections. Limitations based on the length of residency and the blanket restriction of those convicted of a crime are contrary to OSCE commitments and other international obligations and standards (footnote 22: Paragraph 15 of the 1996 UNHRC General Comment No. 25 to the ICCPR states that “any restrictions on the right to stand… must be justifiable on objective an d reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as… residence…” See also paragraphs 7.3 and 24 of the 1990 OSCE Copenhagen Document). (pages 2, 9).
The CEC RK standpoint. Requirements to candidates to president are set out in clause 2 of article 41 of the Constitution of the Republic of Kazakhstan (in particular, he/she must be a citizen of Kazakhstan living in Kazakhstan last 15 years). It should be noted that in some countries residency requirement is set for more than 10 years, for example, in the United States (14 years).
The document “Existing Commitments for Democratic Elections in OSCE Participating States” (Warsaw, October 2003) specifies that “restrictions on the right to be elected must be confined to accepted criteria”, in particular “to reasonable residency requirements” (see page 63 of “Warsaw Commitments” of the English version).
According to the Constitutional Act on Elections (see sub-clause 2 of article 4) a candidate to President of the Republic of Kazakhstan cannot be a person with criminal record, which was not cancelled or removed as well as a person, whose guiltiness in commitment of corruption crime or corruption offence was recognized by a court according to the procedure established by law.
As it was noted above, the passive suffrage is not an absolute human right, derogation from which is not allowed under any circumstances. The state may restrict the right to stand for election in order to prevent of coming to power of persons, threatening the interests of the society and the state.
Also, the presence of the requirement of non-registration as a candidate for public office of persons, whose guiltiness in committing a corruption crime or offense is recognized by the court, meets the requirements of clause 2 of article 7 of the UN Convention against Corruption of 31 October 2003, adopted by 176 member-states, including developed democracies – the US, the UK, Netherlands, Germany, France, and that was ratified by the Republic of Kazakhstan on 4 May 2008. It obliges the participating states to consider adopting appropriate legislative and administrative measures in order to prescribe criteria concerning candidature for and election to public office. In the OSCE area there are no rules about the possibility to provide the persons who have been convicted for any of the severity of the crime with the right to elect or be elected. Therefore, the Kazakhstan’s law on this issue is quite consistent with the international principles and norms.
We believe that the acceptance criteria for candidates to the post of president are quite reasonable and justified.
26. However, the timeline for candidate registration gives late nominees fewer days to collect signatures (footnote 28: For example, a candidate nominated on 15 March would have had to submit signatures by 20 March. In this five-day period the nominee’s eligibility was to be verified (which can take up to five days), signature sheets were to be issued (which can take up to two days), and signatures were to be collected) (page 10).
The CEC RK standpoint. The number of valid signatures of voters in support of a candidate to President of the Republic of Kazakhstan was of at least 93,012 signatures. The collection of signatures was organized by the proxies.
By the CEC RK Resolution of 27 February 27, 2015 No. 6/266 “On the reduction of terms of issuance of signature sheets and verification of signatures in support of a candidate to President of the Republic of Kazakhstan at the early election of the President of the Republic of Kazakhstan, called on 26 April 2015” the term of issuance of signature sheets was reduced from five to two days. This resolution was adopted solely in the interests of candidates to president. Thus, the candidates were given with more time to collect signatures. It should be noted that despite the geographical size of the country and reduction of the time for collecting signatures, the number and size of the groups on collection of signatures was not limited, giving the advantage of full coverage of all regions of the country in order to meet the deadlines.
27. A CEC decision from 9 March on signature verification provided limited guidance for the TECs and no clarification on what constitutes a duplicate signature (page 11).
The CEC RK standpoint. The CEC RK Resolution of 9 March 2015 No. 3/10 precisely and clearly specifies all grounds for recognition of non-authenticity of voters’ signatures, which did not require the further detailed clarification.
In order to prevent complaints from the part of candidates and voters concerning use of illegal methods during collection of signatures and its falsification, the election commissions together with officials of passport services of internal affairs departments in oblasts, cities of Astana and Almaty, addressed the matter of verification of signature sheets more carefully and closely. It should be noted that most of the work on signatures verification was done by officials of passport services in compliance with the legislation of the Republic of Kazakhstan and internal approved instructions.
Also, the CEC RK developed a form of the act “On the results of the verification of voters' signatures on the signature lists of a candidate to President of the Republic of Kazakhstan”, which was sent to the territorial election commissions as a recommendation.
28. Although there was no deregistration of candidates in this election, the Election Law continues to provide extensive criteria for possible deregistration of candidates, challenging the principle of proportionality and at odds with Paragraph 24 of the 1990 OSCE Copenhagen Document (footnote 31: Possible reasons for deregistering a candidate include campaigning while using an official or professional position; campaigning before registration, or in the silence period; and the distribution by the candidate and/or his proxies of false information discrediting the honour and dignity of other candidates or undermining his business reputation) (page 11).
The CEC RK standpoint. As the OSCE/ODIHR Mission stated itself there was no deregistration in this election according to sub-clause 3 of clause 7 of article 59 of the Constitutional Act on Elections. Paragraph 24 of the OSCE Copenhagen Document of 1990 states that “the participating States will ensure that the exercise of all the human rights and fundamental freedoms … will not be subject to any restrictions except those which are provided by law and are consistent with their obligations under international law … will ensure that these restrictions are not abused and are not applied in an arbitrary manner, but in such a way that the effective exercise of these rights is ensured”. Thus, the grounds for deregistration, stipulated by the Constitutional Act on Elections, do not contradict to paragraph 24 of the OSCE Copenhagen Document of 1990, as the exercise of the rights by the candidates is ensured without the abuse and not in arbitrary manner.
VIII. Election Campaign
29. Despite the stated importance of the early election, the campaign was largely indiscernible, lacked competitiveness and appeared to generate negligible public interest. While the existence of three candidates constituted an appearance of political variety, it did not provide voters with a genuine choice between political alternatives. Several OSCE/ODIHR EOM interlocutors stated that they were not familiar with the names or platforms of candidates other than the incumbent’s (page 11).
The CEC RK standpoint. Campaigns of candidates and the election itself were held openly and transparently, within the framework of Kazakhstan's electoral legislation and the principles of international law. Two candidates were opponents to the incumbent president, giving a real choice to voters. All candidates were provided with equal opportunities for free conduct of campaigning. The headquarters of candidates held full-scale campaigning events, which were widely covered by the media and watchfully monitored by ten thousand Kazakhstani and more than a thousand international observers. Programs of candidates were significantly different from each other and were equally covered in the media. Across the country, on a daily basis the meetings were held and the provisions of election platforms were explained, political programs were clearly illustrated on billboards and posters. Thus, the realization of freedom of expression was ensured.
It should be emphasized that candidates to president are authoritative people, well-known figures. Ignorance by the OSCE/ODIHR Mission’s interlocutors of the election platforms of T. Syzdykov and A. Kusainov evidenced that they did not delve in the social and political life of Kazakhstan’s society. T. Syzdykov, being a secretary of the Central Committee of Communist People’s Party of Kazakhstan, one of leaders of a parliamentary party, A. Kusainov, being a chairman of the Federation of Trade Unions of Kazakhstan, had and have their electorate, constituted a worthy competition within the framework of the last electoral campaign.
30. Although the incumbent announced his decision not to campaign personally, he actively toured the country during the campaign in his official capacity. From 26 March to 18 April, the incumbent made 32 appearances at exhibitions, hospitals, cultural centres and industrial plants in Astana, Almaty and seven regions (footnote 32: According to the official website of the President, www.akorda.kz, in the same period in 2014, he made three similar appearances in Astana and Almaty). Posters and billboards of the incumbent, both in his capacity as a candidate and as head of state promoting the “Kazakhstan-2050” and Nurly Zhol programmes, were visible throughout the country. The incumbent’s campaign materials bore a striking resemblance with the promotion materials of these state-funded programmes. Other than official CEC posters, almost no campaign materials were observed for the other two candidates (page 12).
The CEC RK standpoint. In order to clarify this situation, I would like to provide statistics on the incumbent President’s trips around the country in the past three years. It was as follows: 12 trips in 2012, 14 trips in both 2013 and 2014, 6 trips in 4 months in 2015. Visits by the President of the country's regions are a common practice associated with the exercise of his official duties. Six visits in 2015 were also part of his daily work, but not of a campaigning. In addition, this practice also exists in western democratic states. For example, the presidents of the US, France and other democratic states of the world, taking part in the presidential race, do not suspend their presidential powers; they continued to be simultaneously the incumbent presidents and the candidates to president, by exercising their official duties, which were widely covered in the media.
As for the campaigning activities of other candidates, we would like to emphasize that headquarters of two candidates were working in active mode. For example, the head of campaign headquarters of T. Syzdykov Mr. Aykyn Konurov informed at the meeting with local observers that 203 city and district committees in oblast centers, more than 2000 primary party organizations were involved actively in the election campaign. Since the start of campaigning, as a result of close cooperation with the media, more than 100 materials on the work of the candidate and his campaign headquarters were posted in more than 40 Internet resources placed, more than 2 dozen of articles were published in the print media. Videos on the activities of T. Syzdykov were broadcasted daily on the television. The same active campaigning was held by national and regional headquarters of the candidate A. Kusainov, who organized many different activities that were covered on television on a daily basis. Both candidates, members of their headquarters and proxies at the meetings with the population of the district settlements including distant from the regional centers, focused their attention to the fact that every resident knew about their election program and the promoted by them ideas. Posters and leaflets were distributed in all regions of the country, their banners and stands were installed in public places.
Taking into consideration the official statistics of the CEC RK, only in the media there were 14,348 materials, where the activities of candidates were mentioned, including 5,158 in the national and 9,190 in the regional media. The total amount of materials with reference to the candidate A. Kusainov was 5,237, N. Nazarbayev – 5,732, T. Syzdykov – 5,249. Distribution of the printed area at all newspapers (51 national and 179 regional) was equal: A. Kusainov - 31% (268,741 cm2), N. Nazarbayev - 36.9% (319,769 cm2), T. Syzdykov – 32.1% (278,285 cm2). Airtime at the TV channels (17 national, 30 regional) was divided as follows: A. Kusainov - 32.1% (7,908 minutes), N. Nazarbayev - 34.9% (8,574 minutes), T. Syzdykov - 33 % (8,118 minutes). Radio broadcasting (11 national channels) dedicated the coverage of the candidates’ election campaign as follows: A. Kusainov - 31.4% (198 minutes), N. Nazarbayev - 36.7% (232 minutes), T. Syzdykov - 31.9 % (202 minutes).
As we can see, campaigning work of the candidates was intense, the personal meetings with the population were held not only in regional centers, but also in the remote settlements. The scope and opportunities for appearances in the Republic’s media were provided to all three candidates equally.
31. The two latter candidates did not address political or economic issues concerning Kazakhstan and openly lauded the President for the country’s achievements. All observed campaign events were formalistic and devoid of a political debate, contributing to non-competitive campaign environment (pages 11-12).
The CEC RK standpoint. The fact that T. Syzdykov and A. Kusainov mentioned the merits of the President in their campaign events does not contradict to the electoral legislation. We propose to look at this issue from a different angle, taking into account the existing social basis of the country, namely the established respect for the person of the President and his status – Leader of the Nation. Thanks to the wise policy of the country’s leadership for more than twenty years Kazakhstani people live in peace, unity and harmony. It is a fact that must be recognized. It was also recognized by candidates to president, by mentioning the merits of the incumbent President in their election campaign, which was held under the same conditions that were provided to the candidate to president N. Nazarbayev.
In addition, if in their public campaign speeches they noted the achievements of the President, they appealed to the electorate to vote for them, promising to continue the planned reforms, and that was one of the campaigning methods.
32. Many Nur Otan regional offices are co-located with state institutions. Government officials, including university rectors appointed by the President, took an active role in the incumbent’s campaign events. This, together with the incumbent’s institutional advantage and the fact that he drew on a broad network of public sector employees, blurred the line between state and party, which is at odds with paragraph 5.4 of the 1990 OSCE Copenhagen Document (footnote 33: Paragraph 5.4 of the 1990 OSCE Copenhagen Document provides for “a clear separation between the Stat e and political parties; in particular, political parties will not be merged with the State”) (page 12).
The CEC RK standpoint. The Constitutional Act on Elections prohibits conducting of election campaigning by government officials of the state bodies, while they exercise their official duties. Civil servants wishing to participate in the campaign are obliged to resign, by taking a short vacation. The CEC RK was acquainted with the composition of the headquarters of the presidential candidates and stated that the headquarters of the candidate Nazarbayev did not include the civil servants who were performing their official duties. Information about co-location of the regional offices of "Nur Otan" party with state institutions does not correspond to reality. After analyzing information on the location of offices of "Nur Otan" party by regions according to the official website of the "Nur Otan" party, we note that their offices were and are located separately from the buildings of the local executive bodies.
33. The OSCE/ODIHR EOM received information from students and company employees of being instructed by supervisors to volunteer for the incumbent’s campaign, attend campaign events held on his behalf, and vote for him (footnote 34: Almaty city, Kostanay, Mangystau and Zhambyl regions). A number of initiatives were launched to encourage voter participation, underlying the importance of a high turnout to ensure a strong mandate for the president. Several interlocutors informed the OSCE/ODIHR EOM of credible instances of state resources being used by local authorities and university administration to pressure electorate to turn out in high numbers, linking failure to do so with disciplinary measures or loss of financial benefits (footnote 35: Akmola, Pavlodar, East Kazakhstan, Mangystau and Zhambyl regions as well as Almaty city). This raises concerns about voters’ ability to cast their vote “free of fear of retribution” as required by paragraph 7.7 of the 1990 OSCE Copenhagen Document (footnote 36: Paragraph 7.7 of the 1990 OSCE Copenhagen Document provides that “OSCE participating States will ensure that law and public policy work to permit political campaigning to be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them or from casting their vote free of fear of retribution”) (page 12).
The CEC RK standpoint. During the whole period of implementation of democratic reforms Kazakhstan’s society including student society has learnt how to define their political standpoints and forms of participation in the country’s public and political life. In this election employees of Kazakhstan’s budgetary and commercial organizations, the students as the most active part of the youth expressed their civil standpoint by participating in the election campaign and in the voting process itself.
During the observation of election the violations related to voting procedures, including any illegal influence on the democratic choices of young people and ordinary company employees, have not been fixed. This is witnessed by other observers that monitored the voting process, who, on the contrary, noted the unprecedented optimism, enthusiasm and a special mood, expressed by young citizens during the vote.
Forcing someone to vote in elections is the illegal practice, which entails criminal and administrative responsibility (see: article 150 of the Criminal Code and articles 112, 122 and 123 of the Code on Administrative Offences).
According to the territorial election commission of Almaty city (ref. No. 75 of 24 September 2015) “in the period of preparation and holding of early election of the President of the Republic of Kazakhstan, called on 26 April 2015, no complaints and appeals from students and company employees on the enforcement to participate in campaign events and to vote for the incumbent president”, as well as “from voters on the pressure on them by the local authorities and university administration in order to ensure a high voter turnout, linking failure to do so with disciplinary measures or loss of financial benefits” “were not reported”. Similar answers were given also by territorial election commissions of Kostanay (ref. No. 54 of 15 September 2015), Mangistau (ref. No. 605-605/14 of 10 September 2015), Zhambyl (ref. No. 26 of 9 September 2015), Akmola (ref. No. 65 of 8 September 2015), Pavlodar (ref. No. 322 of 11 September 2015), East-Kazakhstan (ref. No. 46 of 1 October 2015) oblasts.
34. The OSCE/ODIHR EOM requested schedules for all candidates’ campaign events, but received only limited advance information from proxies acting on behalf of the incumbent’s campaign (page 11).
The CEC RK standpoint. Compilation of schedules of campaign activities is the prerogative of the election headquarters of presidential candidates. Mandatory provision of these schedules is not regulated by the electoral legislation and is based solely on the will of the candidates or their proxies. As for the campaign activities of candidates, they were held openly and could be freely acquainted though the media.
In addition, pursuant to the requirements of clause 4 of article 28 of the Constitutional Act on Elections the schedules of meetings of candidates and their proxies with voters held in designated by the local executive bodies premises were published by election commissions in the local mass media.
35. While freedom of assembly is guaranteed in the Constitution, the Law on Peaceful Assemblies contains limitations on holding outdoor public assemblies. A request to hold a public event, including information about the nature and organizers of the event, has to be submitted to the relevant local executive body ten days in advance. The obligation to ask for permission is not in line with international standards and good practice (footnote 37: Paragraph 9.2 of the 1990 OSCE Copenhagen Document stipulates that “everyone will have the right of peaceful assembly and demonstration. Any restrictions which may be placed on the exercise of these rights will be prescribed by law and consistent with international standards”. Paragraph 12 of the 1996 UNHRC General Comment No. 25 to the ICCPR states: “Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected”. Paragraph 4.1 of the 2010 OSCE/ODIHR and Venice Commission Guidelines on Freedom of Peaceful Assembly recommends that any “legal provision should require the organizer of an assembly to submit a notice of intent rather than a request for permission”. See, also: UN Human Rights Council “Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association” (16 June 2015), A/HRC/29/25/Add.2, paragraph 59). Almost no requests were made to conduct open-air events in 2015. Restrictions on the freedom of assembly effectively led to a cessation of political expression through peaceful public gatherings (pages 12-13).
The CEC RK standpoint. Guarantees of freedom of peaceful assembly in Kazakhstan are contained in article 32 of the Constitution of the Republic of Kazakhstan: “Citizens of the Republic of Kazakhstan have the right to peacefully and without arms assemble, hold meetings, rallies, demonstrations, marches and pickets. This right might be restricted by law in the interests of national security, public order, public health, and protection of the rights and freedoms of others”.
At the same time the legislation of the Republic of Kazakhstan takes into account the interests of other citizens, those who do not participate in the assembly and do not support the protesters. For this purpose, a permissive procedure for holding rallies as well as 10-day term for its approval is set. Also, it should be noted that international legal instrument - the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985) provides for certain restrictions on holding peaceful assemblies that are introduced in order to ensure public order, public health and protection of the rights and freedoms of others.
Preliminary request for holding of peaceful assembly, which must be sent to akimat 10 days before the peaceful assembly, is reasonable and justifiable limitation and complies with the norms of international legal instruments. Thus, the preliminary request is used in the interest of public safety, protection of public health, but not for limitation of the freedom of assembly.
36. From 7 April until the end of the election campaign, a group of citizens, led by an unsuccessful presidential nominee, gathered in front of the presidential administration to request a meeting with the President in his capacity as a candidate. A number of people, including the nominee and one journalist, were detained in connection with the gathering, further calling into question the respect of freedom of assembly (footnote 38: Essenbek Ukteshbayev in co-operation with the public association “Housing for the People”) (page 13).
The CEC RK standpoint. According to official information of the Ministry of Internal Affairs of the Republic of Kazakhstan (letter ref. No. 1-5-4-91/1-6555 of 5 May 2015) since 7 till 24 April 2015 around 50-60 people led by the head of the NGO “Let Us Leave the Flats to People” E. Ukteshbaev, who insisted on the meeting with the candidate to President of the Republic of Kazakhstan Nursultan Nazarbayev to address the problems of mortgage loans, came to the city of Astana from the cities of Almaty, Taraz as well as from Almaty and South Kazakhstan oblasts. On 16 April 2015 the representatives of the NGO “Let Us Leave the Flats to People” has been joined by a group of “Dissenters” headed by K. Takeeva.
As a result of negotiations between the two NGOs an incident arose after which representatives of the group of “Dissenters” have applied to the police on the facts of their insult by the members of the NGO “Let Us Leave the Flats to People”. Based on this complaint the investigation unit of the police has initiated a criminal case under article 174 of the Criminal Code of the Republic of Kazakhstan (inciting social, national, ethnic, racial, class or religious discord) and held an investigation. The incident did not arise in connection with the meeting, but in connection with the manifestation of the hostile relations between the two NGOs.
Officials of the competent state bodies, the local executive bodies, including representatives of akimats of South-Kazakhstan and Aktobe oblasts, held meetings with the “mortgage loan holders” in order to establish a constructive dialogue. Thus, it should be emphasized that there were no violations of the right of citizens to freedom of peaceful assembly.
IX. Campaign Finance
37. There are no requirements for the candidate to report or the CEC to publish any campaign finance information prior to election day. This limits transparency of campaign financing and voters’ ability to make an informed choice (footnote 42: Article 7.3 of the 2003 UN Convention Against Corruption calls on states to “consider taking appropriate legislative and administrative measures… to enhance transparency in the funding of candidatures for elected public office”) (pages 13-14).
The CEC RK standpoint. According to the CEC RK Resolution of 7 August 1999 No. 19/222 “On approval of Rules on spending means of electoral funds” the banks shall submit to the relevant election commission a weekly report on the flow of means to the special temporary accounts and on its expenditures. Upon a request of the relevant election commission the same data shall be submitted within twenty-four hours.
In addition, clause 4 of article 34 of the Constitutional Act on Elections stipulates that the information on the total amount of money received by the fund and on its sources shall be published in mass media within ten days after the publication of the election results. The Constitutional Act on Elections clearly defined the requirements for the provision of the candidates’ reports and publication by the CEC RK of information on the financing of the election campaign. These two regulatory legal acts ensured the full transparency of the campaign financing and the voters’ ability to make an informed choice.
Thus, the Mission’s statement that the accounting rules limit the transparency of campaign financing and the voters’ ability to make an informed choice is incorrect. Until the day of election and after the election financing was monitored by CEC RK and other competent authorities, and was carried out in a transparent manner.
On the other hand, nor the Kazakhstan’s civil society, neither any other Republic’s citizens sent any complaints or expressed the initiatives on the need to publish this kind of information.
38. Sanctions for breaches of campaign finance rules are defined in the Administrative Offences Code, which provides for fines of up to KZT 99,000, as well as in the Election Law, which provides for de-registration of candidates and the invalidation of results for any violation (footnote 45: Article 27.9 of the Election Law states that from the moment elections are called, candidates “…are forbidden to carry out charitable actions except the conduct of entertainment and sports events”). The lack of criteria and proportionate measures in the Election Law may lead to arbitrary decisions (page 14).
The CEC RK standpoint. Clauses 9 and 10 of article 34 of the Constitutional Act on Elections provide for de-registration of a candidate as well as of the President after the election. In particular, according to clause 9 a candidate “not later than five days after the establishment of the election results” must provide financial reports on the use of the election fund. We believe that these criteria are quite proportionate and cannot lead to arbitrary decisions. Nomination of a candidate to president is a responsible political step and requires thoroughness and thoughtfulness in each electoral stage.
39. As self-nominated candidates are not entitled to the latter source of funding, the maximum amount of financing a candidate can receive, and subsequently spend, differs for party and self-nominated candidates (footnote 40: President Nazarbayev and Mr. Syzdykov, nominated by political parties, could receive up to KZT 577 million (EUR 2.9 million) each. Mr. Kusainov, self-nominated, could receive KZT 427 million (EUR 2.1 million)). This challenges paragraph 7.5 of 1990 OSCE Copenhagen Document, which provides equal rights for independent and party candidates (footnote 41: Paragraph 7.5 of the 1990 OSCE Copenhagen Document commits OSCE participating States to “respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination”) (page 13).
The CEC RK standpoint. If a candidate is not nominated by the supreme body of the republican public association, but by self-nomination, the size of the election fund is somewhat reduced. However, this is quite an impressive amount, which allows a self-nominated candidate to conduct an effective campaign.
40. The law bans charitable actions by candidates once elections are announced (footnote 43: Article 27.9 of the Election Law states that from the moment elections are called, candidates “…are forbidden to carry out charitable actions except the conduct of entertainment and sports events”). On 17 March, the incumbent donated KZT 111,576,000 (EUR 557,880) from the “Silk Road Peace Prize” he received to the Public Association Miloserdie and the Foundation for the Development of the State Language (footnote 44: See: http://www.akorda.kz/en/page/page_219393_). The CEC informed the OSCE/ODIHR EOM that it considered the President to have been acting in his official capacity. This action blurred the line between State and candidate (page 14).
The CEC RK standpoint. The President of the country took part at this meeting, while exercising his official duties, but not as a candidate to elective office. The donation was made on 17 March 2015, i.e., in the process, when he only announced his candidacy but was not registered as a candidate to president (registration of candidates officially ended on 25 March 2015), and, therefore, he has not proceed to his campaigning activities. In fact, at that time Nursultan Nazarbayev did not act in the role of the candidate, but acted as President of the Republic of Kazakhstan. In this context, the transfer of these monetary means was not part of the campaigning activities. This step was taken in order to help children with serious illnesses, incurable in Kazakhstan, as well as for the promotion of the Kazakh language in the territory of the Republic and outside of it, which was the signal for our society to pay more attention to the charity work. In addition, these means were transferred on the eve of Nauryz, the meaning of which is to help each other, especially the children. This charitable help from N.A. Nazarbayev it is not his single act. He regularly transfers his fees to help not only Kazakhstani citizens, but also citizens of other countries.
41. Article 34.4 of the Election Law requires the CEC to publish in the mass media information about the amount and sources of funding of each candidate within ten days of the announcement of election results. OSCE/ODIHR EOM media monitoring indicated that the information was not made readily available in media by this deadline. Once the information was posted on the CEC website it did not provide detailed information on the amount and source of campaign contributions or the amount and purpose of campaign expenditures (footnote 46: According to the information on the CEC website: President Nazarbayev spent KZT 572 million, Mr. Sydykov 284 million and Mr. Kusainov 69 million. President Nazarbayev received 320 million from donations, and he invested in the campaign 106 million from his own resources. He was the only candidate that received funds from the party that nominated him, to the amount of KZT 150 million. Mr. Syzdykov’s election fund of KZT 283 million consisted solely of donations, while Mr. Kuzainov’s election fund amounted to KZT 69 million, 56 million of which were donations) (page 14).
The CEC RK standpoint. Indeed, the electoral legislation of Kazakhstan provides that information about the total amount of money received by the fund and its sources shall be published in the media by the Central Election Commission within ten days after the publication of the election results. This information was published in the newspaper "Kazakhstanskaya Pravda" on 7 May 2015 No. 85, that is, after a ten-day period, as it is required by clause 4 of article 34 of the Constitutional Act on Elections. Thus, the OSCE/ODIHR Mission’s statement that the information was not made readily available in media by this deadline was incorrect.
X. Media
A. Media Environment
42. The media environment suffers from a general lack of independent sources and a restrictive legislative framework that profoundly endangers freedom of expression and contributes to a stifled public debate. While there is more than 2,500 media outlets registered, most privately owned, many are dependent on state financing which is partly due to a small advertising market. The leading media outlets are either state-owned or considered to be closely affiliated with the ruling party (pages 14-15).
The CEC RK standpoint. Clause 7 of article 27 of the Constitutional Act on Elections obliges the media to provide objective coverage of the election campaign. During the election period the main task of all media both state-owned and private was to honestly and impartially cover the pre-electoral, electoral and post-electoral processes, ensure equal right to access to the media to each candidate, provide the society with an objective and balanced coverage of the activities of election campaign stakeholders. By doing so, it facilitates the citizens of Kazakhstan to take the final decision, and to make an informed choice during vote.
The competent authorities of the Republic monitored every day the press, and did not reveal any unbalanced and biased statements by private media regarding political, including electoral, events in the country. The fact that most of the media in Kazakhstan is private does not mean that the media were the subject to criticism and any pressure from the government bodies, on the contrary, this fact is a measure of objectivity, independence and balance of the private media in their work. Moreover, since the beginning of the election campaign no single media was closed, accordingly there was no limitation of pluralism in the media.
A specific feature of the coverage of election campaign was that the media did not use “dirty” technologies, did not post discrediting evidence, and generally respected ethical standards of journalism. However, the media did not lose sight on the critical observations of a political nature, which were contained in the election platforms of the candidates, thereby ensured the provision of comprehensive information to voters.
According to the Committee for communication, informatization and information of the Ministry for Investments and Development of the Republic of Kazakhstan as on 20 February 2015 2,225 media outlets, including 521 state-owned and 1,704 private, were registered in Kazakhstan.
According to the Committee for Statistics of the Ministry for National Economy of the Republic of Kazakhstan Kazakhstan's in 2012-2014 the average annual advertising market in the media was KZT 8.7 billion, while in the first half of 2015 it reached almost KZT 25 billion[1]. Thus, the media may function well without state financial support. In this regard, saying that most of the media, including private ones, are dependent on state financing, is incorrect.
43. There are only a few independent media sources offering diverse views; independent viewpoints are particularly lacking among television outlets that serve as main source of political information (page 15).
The CEC RK standpoint. In Kazakhstan, according to the Committee for communication, informatization and information of the Ministry for Investments and Development of the Republic of Kazakhstan, as of 20 February 2015 there were 2,225 active registered media outlets in the Republic of Kazakhstan, including 521 state-owned and 1,704 private. Among them there were 1,364 newspapers, 76% of which were private ones, and 522 magazines. It is worth noting that in recent years the number of newspapers has been constantly increasing mainly due to the emergence of new private media. The situation is almost similar with the magazines. Thus, the largest share in the country’s information space belongs to the non-state media - 67% (342 magazines), while the share of the state-owned is 33% (172 magazines).
Since the beginning of election campaign, television channels with an alternative point of view independent from the state, such as “KTK”, “NTK”, “Tan”, “Channel 31” objectively and fully reflected the electoral situation in the country, providing citizens with the opportunity to form their civil standpoint. The opposition newspapers such as "Svoboda Slova”, “Dat”, “Tribuna”, “Zhass Alash”, the magazine “Adam” published a considerable amount of detailed articles about the election in a critical format. The society was able to obtain information from different sources. As we can see, there were quite enough diverse, independent viewpoints on electoral issues among the country’s television channels.
44. A restrictive legal framework for media and recent sanctions, including closure and blocking of websites, decreased the diversity of viewpoints and stifled public debate. Numerous sanctions, including closure of media and blocking of access to websites, has resulted in limited editorial independence and a media environment where political pluralism is virtually absent (footnote 47: See: OSCE Representative on Freedom of the Media (RFoM), November 2014, www.osce.org/fom/127436, April 2014, http://www.osce.org/fom/117595; and September 2013, http://www.osce.org/fom/105946. See also: UNHRC “Concluding Observations on Kazakhstan” (19 August 2011), CCPR/C/KAZ/CO/1, paragraph 25. Paragraph 36 (Human Dimension) of the 1994 OSCE Budapest Document states that “independent and pluralistic media are essential to a free and open society and accountable systems of government”). Threats of legal action and other forms of intimidation restrict media’s ability to report freely (pages 2, 15).
The CEC RK standpoint. During the election campaign no single media was closed, accordingly there was no limitation of editorial independence and there was no practically complete lack of political pluralism in the media environment. As we have mentioned above, in the oppositional newspapers: “Svoboda Slova”, “Tribuna”, “Dat”, in the magazine “Adam” considerable amount of detailed articles in a critical format was given. And the country’s citizens were able to freely be acquainted with alternative political viewpoints, as the oppositional print media were freely available for sale and technically the access to the Internet was provided to almost every citizen of Kazakhstan.
The responsibility is envisaged for spreading false information, discrediting the honor and dignity of a citizen or an organization. In this case, a victim (person or organization) is eligible to demand a free publication of refutation (speech with refutation) in the media, which admitted an insult.
The legislation provides for responsibility for making pressure on the court through media, publication and issue of materials containing propaganda and promotion of a forcible change of the constitutional system, violation of the integrity of Kazakhstan, undermining the public security, war, social, racial, national, religious, class and tribal superiority, the cult of cruelty, violence and pornography: all these measures are reasonable and consistent with international norms and practice.
B. Legal Framework
45. Although the Constitution guarantees freedom of expression and prohibits censorship, the Criminal Code retains defamation and insult as well as special protection of the president, his family, and various public officials, which is contrary to international standards as well as previous OSCE/ODIHR and OSCE RFoM recommendations (footnote 48: See paragraph 47 of the 2011 UNHCR General Comment No. 34 to Article 19 of the ICCPR. Article 46.1 of the Constitution is at odds with Article 19.2 of the 1966 ICCPR and paragraph 9.1 of the 1990 OSCE Copenhagen Document. See also, OSCE RFoM, June 2014, available at: http://www.osce.org/fom/119562). The Code also contains a provision on spreading false information, with a penalty of up to ten years of imprisonment. In combination with frequently used defamation provisions in the Civil Code, which can carry substantial fines, the legal framework induces self-censorship and limits the freedom of speech (footnote 49: Article 143 and 187 of the Civil Code. There is no ceiling on compensation in civil suits for defamation) (page 15).
The CEC RK standpoint. Libel is a serious crime, since it is meant the spreading intentionally false information on any physical person for the purposes of undermining his/her honor and dignity, professional reputation. Norms on criminal responsibility for libel are contained in the penal legislation of almost all European countries (Austria, Germany, Spain, Portugal – in total 28 mainly Western European states) and this in no way limits the freedom of speech in those countries.
With regard to the preservation of the working Criminal Code of the Republic of Kazakhstan of responsibility for libel and insult, it should be noted that the vast majority of states on the planet, including practically all European states, have in their penal legislation various articles on criminal responsibility for libel. However, the OSCE ignores this fact and insists that Kazakhstan must exclude from its legislation criminal prosecution for libel. Why the presence of criminal penalties for libel in European states does not create a threat to freedom of speech, but in Kazakhstan it will lead to restriction of freedom of speech?
Moreover, the experience of the absolute majority of states of the world shows that the existence of articles on libel and insult in the criminal law serves as a constraint, which does not limit the freedom of speech, but the attempts to use libel against the legitimate rights and interests of an individual.
In many developed countries of the world, including in the OSCE participating States, at the legislative level the norms setting different kinds of sanctions both in criminal and civil law aimed to protect the rights of citizens as well as of a certain range of the country's leadership, including the President, government officials, civil servants, from the ungrounded accusations, libel and insults, are established. Republic of Kazakhstan is also among their numbers.
However, it should be emphasized that in the notes to articles 373, 375, 376, 378 of the Criminal Code of the Republic of Kazakhstan it is stated that public speeches, containing critical statements on the policy of the President of the Republic of Kazakhstan, on activities of a deputy of the Parliament of the Republic of Kazakhstan, on official activity of a government authority representative are not subject to criminal responsibility. And this is an immediate legislative guarantee to freedom of speech, freedom to express opinions.
Article 130 of the Criminal Code of the Republic of Kazakhstan of 3 July 2014 prescribes that “libel is meant as spreading intentionally false information, discrediting the honor and dignity of another person or undermining his reputation”. At trial, the prosecutor must present evidence to the court that the accused person clearly knew that he/she has spread false information. If a person spreads false information, but honestly was misled in its falsity, then, according to Kazakhstan’s legislation, he/she cannot be prosecuted for libel. And this is another barrier that does not allow prosecuting for libel of a fair journalist, who criticizing the authorities, including the President, and allowing some inaccuracies due to ignorance of certain circumstances.
None of the international instruments provides for the decriminalization of spreading intentionally false information, discrediting the honor and dignity of another person or undermining his/her reputation.
Thus, criminal responsibility for the above actions is used for the interests of ensuring protection of the honor and dignity of a human being and a citizen, but not of limiting the freedom of speech.
46. A 2009 amendment to the Mass Media Law classified websites (including blogs, chat rooms, and web forums), as regular mass media outlets, thus becoming subject to media-related regulations and sanctions. Further, a 2014 amendment to the Law on Communications allows the prosecutor to temporarily shut down websites if they distribute information ‘harmful’ to individuals, society and the state, or contain calls for ‘extremist’ activities. Several OSCE/ODIHR EOM interlocutors expressed concerns that these amendments may be applied in a way that further stifles public debate (page 15).
The CEC RK standpoint. Here, it is needed to clarify that is necessary to distinguish between the communication networks, means and services, and Internet resources. Of them, only Internet resources are defined as media.
Temporary suspension of communication networks, means and services of a specific operator is used only in exceptional cases, as a measure aimed at preventing their use for criminal purposes, causing damages to the individual, society and the state (e.g., DDOS-attacks, SMS and other fan-mailing using Internet software services or applications). In addition, in accordance with article 41-1 of the Law of the Republic of Kazakhstan of 5 July 2004 “On Communications” the public prosecutor cannot “temporarily shut down websites”. This is a prerogative of the competent authority in the field of communications, which can do it exclusively upon receipt of the prescription of Prosecutor General or his/her deputy to eliminate violations.
This measure can be applied in the case of the spreading information, which violates the electoral legislation, contains the calls for extremist and terrorist activities, riots, participation in mass public events conducted in violation of the legislation, as a permanent response mechanism of the state to information challenges and threats. After the removal of this information the operation of Internet resources shall be resumed. There are no norms, which "stifle public debate" in Internet.
In addition, according to the Law on Mass Media and the Civil Procedure Code the suspension of Internet resources or access to them is permitted only through a juridical procedure, not by prescription of the public prosecutor or the decision of the competent authority.
Thus, a 2014 amendment to the Law “On Communications” does not violate the freedom of expression in the media, and serves for the interests of society and the state as a protection against the use of the Internet for criminal purposes or to destabilize the public order.
47. The Law on Broadcasting tasks government bodies with the implementation of state broadcasting policy. Broadcasting licenses are granted by Committee under the Ministry of Culture, Information and Sport. Another state body, The Committee for Communication, Informatization and Information under the Ministry of Investment and Development (Media Committee), is responsible for overseeing broadcast media. While the regulators are provided with broad discretionary powers, there are very few specific procedures for execution of these powers, including sanctions. In addition, the law does not address public accountability of the oversight bodies (page 15).
The CEC RK standpoint. In the letter of the Committee for communications, informatization and information of the Ministry for Investments and Development of the Republic of Kazakhstan (ref. No. 30-30-7/14942 of 18 September 2015) it is said that the Decree of the President of the Republic of Kazakhstan of 7 March 2014 No. 761 “On the reform of the public administration system of the Republic of Kazakhstan” this committee was determined as an competent authority responsible for the implementation of the state broadcasting policy (hereinafter - the competent authority).
As for the Committee (Information and Archives) under the Ministry for Culture, Information and Sports, to which the OSCE/ODIHR Mission refers, then it was reorganized by the Decree of the President of the Republic of Kazakhstan of 6 August 2014 No. 875, i.e. more than six months prior to the call of early election of the President of the Republic of Kazakhstan.
In accordance with clause 2 of article 5 of the Law of the Republic of Kazakhstan “On Television and Radio Broadcasting” the state control over observance of the legislation of Kazakhstan on broadcasting is carried out by the local executive bodies. An exception is the control over fulfillment of requirements to the technical means of broadcasting as well as to broadcasting and (or) the retransmission of foreign television and radio channels, which is carried out by the competent authority (sub-clause 4 of clause 1 of article 24 and article 31 of the Law).
The application of sanctions for the broadcasting by TV and radio operators, which have not been registered or re-registered by the competent authority, is stipulated by sub-clause 6 of clause 9 of article 452 of the Code of the Republic of Kazakhstan “On Administrative Offences”.
In addition, in accordance with article 11 of the Law of the Republic of Kazakhstan “On Television and Radio Broadcasting” in order to take into consideration and to protect the public interests in the field of broadcasting as well as to satisfy the needs of the population in the television and radio channels, the Commission on the development of television and radio broadcasting under the Government of Kazakhstan operates, which activity is carried out transparently and openly. All decisions and conclusions of the Government, adopted by the Commission’s recommendation, are subject to obligatory publication in the official media. It should be noted that the Commission is composed of deputies of the Mazhilis and the Senate of the Parliament, representatives of state bodies, non-governmental organizations, the National Chamber of Entrepreneurs and the media.
As we can see, the legislation of Kazakhstan has resolved all the specific procedures for the implementation of state broadcasting policy, including sanctions.
48. Article 27(7) of the Election Law requires media to abstain from distributing information “discrediting the honor, dignity and professional reputation of a candidate”. At the same time, this provision does not define what can be considered a violation of this requirement, thus it could be applied in a manner that would violate a person’s right to free speech and expression (page 16).
The CEC RK standpoint. Article 27 (7) of the Constitutional Act on Elections requires that the media are to refrain from spreading information, which not only “discredits the honor, dignity and business reputation of a candidate”, but the information, which intentionally discredits the honor, dignity and business reputation of a candidate. That is, it is meant for spreading intentionally false information concerning any natural person in order to undermine his/her honor and dignity and business reputation. If a person spreads the false information, but at the same time honestly is misled in its falsity, then according to the legislation of Kazakhstan, he/she cannot be prosecuted. Thus, such norm is used for ensuring the protection of honor and dignity of a human being and a citizen, but not for limiting freedom of speech.
C. Media Monitoring Findings
49. In media monitored by the OSCE/ODIHR EOM, candidates were given even coverage but the incumbent was also extensively covered in his official capacity, thus contributing to an uneven playing field. Candidates were given nominally equal coverage, but the incumbent was also extensively covered in his official capacity, thus contributing to an uneven playing field. Altogether, the coverage of the incumbent was approximately twice as much as that of other candidates... In addition, both channels (Kazakhstan TV and Khabar TV) almost always started their prime time news programmes with reports about the President in his official capacity, devoting to him an additional 26 and 31 per cent of political news coverage, in a positive and neutral tone... Most monitored television channels, as well as two official state-funded newspapers, had a similar pattern in their election coverage with information on the incumbent’s official activities visibly prevailing (most notably on First Eurasian Channel with 37 per cent). A number of monitored media dedicated their attention almost exclusively to official information on the work of the authorities (president, government, local governments, and the CEC). In particular, such an approach was observed in monitored online media, with the President covered extensively (most notably on www.nur.kz with 61 per cent), while information on other candidates was largely absent. The newspaper Zhas Alash was the only monitored media outlet that showed a different approach, with overwhelmingly critical coverage of the President and the authorities (pages 2, 16-17).
The CEC RK standpoint. With regard to the statement of the OSCE/ODIHR Mission on the additional wide coverage of the incumbent in his official capacity, which contributed to creation of unequal conditions in comparison with other candidates, it should be emphasized that the presidents of the USA, France and other democratic countries in the world, taking part in the election campaign, do not suspend their presidential powers, they continue to be simultaneously the incumbent presidents and candidates to presidents, while performing their official duties, which are widely covered by the media.
The results of monitoring of the election campaign in the 17 national and 30 regional TV channels, 11 radio channels, 51 national and 179 regional newspapers, and 152 Internet resources evidenced the active campaign coverage in the media. In total more than 39,000 materials were published and aired. Thus, the media provided voters with the opportunity to familiarize with election materials of all candidates and make an informed choice. Media coverage of the incumbent President in his official capacity was not an electoral propaganda: it was the coverage of the current activities of the president. And it is consistent with international practice.
As it was noted above, the media coverage of the election activities of candidates was carried out actively. The dynamics of the election campaign coverage in the broadcast media was balanced. In general, the media provided a uniform information support to the activities of candidates and their campaign headquarters. In total 14,348 materials with reference to the activities of candidates, including 5,158 materials in the national media, and 9,190 - in regional media, were reported. The total amount of materials with reference to the candidate V. Kusainov was 5,237, N. Nazarbayev – 5,732, and T. Syzdykova – 5,249. More detailed information is provided in paragraph 30 of this Comment.
50. The state-funded Kazakhstan TV and Khabar TV dedicated a comparable portion of political prime time news coverage to all three candidates, with 20 and 18 per cent to Mr. Syzdykov, 19 and 18 per cent to Mr. Kusainov and 15 and 14 per cent to Mr. Nazarbaev. However, the coverage differed in its tone; for Mr. Nazarbaev it was overwhelmingly positive, regularly featuring expressions of support from citizens, while the tone was mostly neutral for the other two candidates (page 16).
The CEC RK standpoint. Monitoring carried out in the period of election campaign from 26 March till 24 April 2015 showed that the dynamics of coverage of the election campaign of all three candidates on 17 national TV channels, 11 radio channels, 51 national newspapers, 152 Internet resources, 30 regional TV channels, 179 regional newspapers were balanced. In general, the media, including TV channels "Kazakhstan" and "Khabar", provided even informational support to the activities of all three candidates in the course of which the tone degrading the dignity of all candidates was not admitted.
51. Although the campaign was visible in nationwide and local media, there were no debates or interviews and virtually no in-depth analysis. In addition, the CEC interpreted the Election Law in a manner that any airtime given to a candidate outside the news was considered as campaigning and should be paid for by the candidates. This, in combination with the media’s perception of their role to strictly comply with the principle of equal opportunity, restricted editorial freedom and did not encourage analytical coverage or critical public debate. The lack of comprehensive campaign information considerably limited the opportunity for voters to make a well-informed choice (page 17).
The CEC RK standpoint. All three candidates to President were provided with the full right to conduct campaigning, using all media tools, including debates and interviews. Candidates to President candidates T. Syzdykov and A. Kusainov gave interviews on the topics of electoral campaign, election activities, work of their election headquarters. This gave them the opportunity to publicize broadly their election platforms in 14,348 media materials, which to a significant extend were deeply analytical in nature.
It should be emphasized that the debates in Kazakhstan's electoral practice are being held. However, the candidates to President have not expressed a desire to participate in the debates. In addition, the election legislation does not prescribe the duty to participate in debates: this right is reserved to the candidates to President.
The OSCE/ODIHR Mission’s statement that the CEC RK interpreted the Election Law in a manner that any airtime given to a candidate outside the news was considered as campaigning and should be paid is not correct. Airtime given to a candidate outside the news was considered as campaigning only in those cases, when a candidate to President during his speech called for voting for him.
Thus, the media were able to provide the voters with a wide range of views and comprehensive information about the campaign, so that they could make a well-informed choice, having full information.
52. The broadcast and print media, including state-funded outlets, selectively covered the election assessments of different observation groups. While positive comments from individual foreign politicians observing election day were frequently aired, the preliminary findings and conclusions of the OSCE/ODIHR EOM were either not covered or selectively mentioned. This limited the opportunity for citizens to receive balanced and objective information on the conduct of elections (page 17).
The CEC RK standpoint. The broadcast and print media, including state-funded, completely and objectively covered the election assessments of the various groups of observations, including the OSCE/ODIHR Mission. All preliminary findings and conclusions of the OSCE/ODIHR, all meetings of the head of the OSCE/ODIHR Mission Mr. Cornelia Jonker with representatives of Kazakhstan’s authorities were covered in all information sources, Internet resources. It should be noted that the TV channels “Khabar”, “24.kz”, “Kazakhstan” there were live broadcasts from polling stations where the most replicated newsbreak topic were the assessments of international observers, including the OSCE/ODIHR observers’ Mission. This circumstance makes it possible to conclude that citizens received the balanced and objective information on holding election, on the observations of different missions.
XI. Complaints and Appeals
53. The right to appeal the final results is limited to the president, the prime minister, the speakers of both houses of the parliament or one fifth of members of parliament. Limitations on the right to appeal final election results are not in line with international good practice (footnote 53: Section II.3.3.f of the 2002 Venice Commission’s Code of Good Practice in Electoral Matters recommends that “All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections”) (page 2, 17).
The CEC RK standpoint. The election results are the realization of the electoral rights of the voters. If the voters’ rights are not met, the citizens may apply to a court with a demand to protection and restore their violated electoral rights. According to articles 13 and 14 of the Constitution of the Republic of Kazakhstan, everyone shall be entitled to exercise the right to judicial protection stipulated by the Civil Procedure Code of the Republic of Kazakhstan.
In accordance with the Constitutional Act on Elections the applications of citizens and organizations on the violation of the electoral legislation (including appeals against the election results) shall be considered by election commissions.
At the same time, the citizens and organizations shall have the right to appeal the decisions and actions (inaction) of an election commission to a superior commission or a court.
However, violations of rights of one or several voters, which were fixed in the order prescribed by the law, cannot lead to providing the right to appeal the final results of election.
There must be weighty reasons for making a decision on the appeal of the final elections results. Serious violations of the law should be established, which do not allow considering the election results with the confidence.
Thus, the right to challenge the election results is a very serious political and legal tool, which is used only in extreme cases and in cases when there were really serious violations of the electoral legislation. Therefore, this right is vested only to representatives of the highest authorities, i.e. the President who is the guarantor of the unity of the state power, one-fifth of the deputies of the Parliament of the Republic of Kazakhstan, who are elected as representatives of the people, the speakers of both Houses of Parliament and the Prime Minister.
The Constitution and the Constitutional Act on the Constitutional Council established the scope of jurisdiction as well as the range of subjects entitled to appeal to the Constitutional Council. The subjects of appeal to the Constitutional Council on the correctness of holding the elections of the President of the Republic, deputies of Parliament and the republican referendum, i.e. to appeal of the final results are the President, the Chairman of the Senate of the Parliament, Chairman of Mazhilis, not less than one-fifth of the total number of deputies of the Parliament (currently an appeal must be signed by not less than 31 deputies), the Prime Minister of the Republic.
The most notable in the work of the Constitutional Council is that it may be appealed by a guarantor of the Constitution - the President of the Republic and representatives of all branches of the state power: the legislative power - in the face of the chairmen of chambers and deputies of the Parliament, the executive power - in the person of the Prime Minister, the judiciary, which is represented by the courts of the Republic.
Consideration of this issue by the Constitutional Council is carried out only in the case of a dispute on the following matters: 1) serious violations have been revealed during the election campaign, which were made public and affected the voting results; 2) there was an insoluble, controversial (or conflict) situation; 3) administrative resources for the resolution of disputes have been exhausted; 4) there were doubts about the legitimacy of the election.
It is necessary to say that use of the term “correctness” in holding election implies verification of the election results in terms of its compliance with the Constitution of the Republic of Kazakhstan, because the Constitutional Council is a body of constitutional control.
54. The lack of clarity in the appeal procedure and the potential conflicts of jurisdiction do not ensure the right to effective remedy as required by OSCE commitments and are not in line with good practice (footnote 55: Paragraph 5.10 of the 1990 OSCE Copenhagen Document states that “everyone will have an effective mea ns of redress against administrative decisions, so as to guarantee respect for fundamental rights and ensure legal integrity”. Section II.3.3.c of the 2002 Venice Com mission’s Code of Good Practice in Electoral Matters recommends that “the appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). Neither the appellants nor the authorities should be able to choose the appeal body”) (page 18).
The CEC RK standpoint. According to the Office of Prosecutor General of the Republic of Kazakhstan (letter ref. No. 2-010732-15-50356 of 15 September 2015), the procedure for appealing decisions and actions of election commissions is expressly stipulated by in the Constitutional Act on Elections and other legislative acts.
According to clause 9 of article 20 of the Constitutional Act on Elections the decisions and actions (inaction) of the election commission may be appealed to a superior election commission and (or) to the court within ten days from the date of taking decision or performance of action (inaction).
Article 49 of the Constitutional Act on Elections obliges the courts to receive and consider the appeals of members of election commissions, citizens, representatives of public organizations on the conduct of voting, violations of electoral legislation within five days if they have been received during the preparation and conduct of election, and immediately if they have been received less than five days before election day and on election day.
Election commissions must consider the appeals of citizens and organizations on violations of the electoral legislation within five days since the date of receipt. Complaints against decisions and actions (inaction) of the election commission and its members shall be considered by a superior commission within three days since the receipt of the complaint.
While the complaint is simultaneously considered by the election commission and the court, the election commission shall suspend consideration of the complaint until the court’s decision shall come into force. The court shall notify the election commission on the received complaint and on the entry into force of the court’s decision as a result of its consideration.
In addition, according to article 272 of the Civil Procedure Code of the Republic of Kazakhstan a citizen, a public association or a member of the election commission, who considers that a decision, action (inaction) of the state body, local self-government body, election commission, public officials violate the right to elect or to be elected, they have the right to apply in writing or in electronic form to the court, which jurisdiction is established by chapter 3 of the Civil Procedure Code of the Republic of Kazakhstan as well as by other laws. At the same time, an application, received during the preparation and conduct of election, as well as within one month since the day of voting, must be considered within five days, and which is received five days before the vote, on the day of election and before the announcement of election results, shall be considered immediately.
Application for appeal of the decision of the election commission about the need to correct the lists of voters (electors) must be considered by the court on the day of its receipt with the participation of the applicant, a representative of the corresponding election commission, a state body or a local self-government body.
In addition, the procedure for filing written applications and complaints of physical persons and legal entities against the actions of public officials of the state bodies is regulated by the Law of the Republic of Kazakhstan “On the order of consideration of appeals of physical persons and legal entities”.
The right to appeal to the state bodies of any stakeholder of the electoral process shall be implemented by him/her independently. This choice is made by him/her freely, the requests are sent not only to the prosecutor offices, but also to other state bodies.
Thus, the national legislation sufficiently regulates the procedure for appealing actions both of election commissions and the state bodies and their public officials.
55. The possibility of a timely and effective remedy may also be undermined by the lack of consistency in regards to timelines for filing and considering complaints and appeals, particularly considering deadlines established by the electoral calendar. Complaints on key aspects of the election process, including candidate registration, could remain unresolved even after election day (footnote 56: For example, complaints against CEC decisions on candidates’ eligibility criteria, including the outcome of the language test, could remain pending until 11 April, well after the deadline for the submission of support signatures expired, and the start of the official campaign, and making it possible for a complaint on candidate registration to be resolved after 26 April). Also, the current deadlines allow an appeal requesting the annulment of an election be lodged after the CEC has officially registered the winning candidate (footnote 57: Article 68.1 of the Election Law provides that election petitions can be file “within ten days after summarizing of the results of the election”, while article 66.1 mandates the CEC “to register the elected president within seven days from the date of an election”). The CEC announced final results on 28 April and the president was inaugurated on 29 April, both events took place before the deadlines to file complaints against final results had expired (page 18).
The CEC RK standpoint. According to clause 1 of article 273 of the Civil Procedure Code of the Republic of Kazakhstan of 13 July 1999, an application received during the preparation and conduct of elections as well as within one month since the day of voting, must be considered within five days, and immediately if it is received five days before the voting, on the day of voting and till the announcement of election results. Furthermore, clause 2 of article 274 of the same Code provides that the court’s decision shall come into effect immediately and shall not be subject to appeal, cassation appeal. It shall be sent to the appropriate state body, local self-government body or the chairperson of the election commission. Consequently, the deadlines to file complaints, which were established by the electoral calendar, in no way were contrary to the timelines for filing and considering complaints and appeals.
In addition, according to clause 1 of article 66 of the Constitutional Act on Elections the CEC RK shall register the elected President of the Republic within seven days since the day of election.
However, regardless of the 7-day period, according to clause 1 of article 68, upon the appeal of the President of the Republic, the Chairman of the Senate, the Chairman of the Mazhilis, not less than one fifth of the total number of deputies of the Parliament, the Prime Minister, which may be submitted within ten days after the announcement of election results, the Constitutional Council shall settle the question of the validity of the election of the President of the Republic.
In this case, the inauguration of the President of the Republic shall be suspended for the period of consideration of an appeal.
In other words, if a complaint was filed against the above-mentioned officials on the issue of correctness of the election within 10 days after the tabulation of election results, then the term of office of the President, which was inaugurated in this case on 29 April 2015, would have been suspended, prior to taking a decision on a complaint.
Moreover, complaints regarding the correctness of the election either the Central Election Commission or the territorial election commissions of all regions of the country (for example, the letter ref. No. OSK-02/208, No. 61 and No. 605-605/14 of 10 September 2015; No. 46 and No. 114 of 11 September 2015; No. 54 of 15 September 2015) in the legally prescribed deadlines from April 29 till May 6 2015 have not received at all. Consequently, the inauguration of the president did not reduce the timelines to file complaints in any way, as in this period the country's election commissions have not received any complaint.
56. Sanctions for breaches of electoral rules include fines, correctional labour, and up to seven years imprisonment. The General Prosecutor’s Office issued warnings to two individuals for comments on Facebook that were interpreted as attempts to disgrace the honour and dignity of two of the candidates, President Nazarbayev and Mr. Syzdykov. Such warnings represent a challenge to freedom of expression (page 19).
The CEC RK standpoint. General Prosecutor's Office of the Republic of Kazakhstan informed that on 26 March 2015 citizens of Kazakhstan S. Sapargali and Zh. Mamai on their personal pages in the social network “Facebook” posted remarks, which humiliated the honor and dignity of the two registered candidates to the President of the Republic of Kazakhstan – N.A. Nazarbayev and T.I. Syzdykov.
Article 34 of the Constitution of the Republic of Kazakhstan obliges each person residing in the country to observe the Constitution and laws of the Republic of Kazakhstan and respect the rights, freedoms, honor and dignity of others.
Also, according to clause 7 of article 27 of the Constitutional Act on Elections the media must refrain from publishing propaganda materials and other information, which intentionally discredit the honor, dignity and professional reputation of a candidate. In accordance with sub-clause 5 of clause 2 of article 50 of the Constitutional Act on Elections a person shall bear the established by the laws of the Republic of Kazakhstan administrative and other liability in the case of the spread of intentionally false information about candidates, political parties or committing of other actions discrediting their honor and dignity.
According to article 104 of the Code of the Republic of Kazakhstan on Administrative Offenses the spread of illegal information (spread of intentionally false information about candidates, political parties or committing of other actions discrediting their honor and dignity in order to influence on the outcomes of election) envisages administrative liability.
In this case, the prosecutor's office of Almaty city acted strictly within the framework of the Constitutional Act on Elections. Moreover, the prosecutor's office of Almaty city on the same day denounced to the above-mentioned persons the warnings about the inadmissibility of violation of the law with an explanation of responsibility, established by law.
Therefore, this kind of warning does not challenge the freedom of expression and is taken in order to prevent violations of the provisions of the law on protection of honor and dignity of a candidate.
XII. Election Observation
57. Transparency of the process was limited, with numerous PECs and DECs not providing the OSCE/ODIHR EOM with the possibility of meaningful observation or obliging them to remain in designated areas… Throughout election day, numerous PECs, DECs and TECs did not provide OSCE/ODIHR EOM observers with the possibility for meaningful observation. In seven per cent of polling stations observed during voting, observers were obliged to be seated or remain in designated areas. The transparency significantly decreased during counting, with observation being limited or prevented in 21 per cent of cases, as well as in 21 out of the 71 tabulation centres observed (pages 3, 19).
The CEC RK standpoint. Constitutional Act on Elections provides legal safeguards and mechanisms to challenge acts of election commissions for limiting the lawful activities of observers. Clause 1 of article 43 of the Constitutional Act on Elections stipulates that the desks at which counting of votes is carried out, must be placed in such a way as to provide visibility of actions of the members of precinct election commission on the part of the persons present in the premise. Clause 4 of article 126 of the Code of the Republic of Kazakhstan “On Administrative Offences” provides for an administrative fine of 35 monthly calculation indices (about KZT 70 thousand) for limiting the right of observers of foreign states and international organizations, representatives of foreign media on the presence at all stages of the electoral process, including monitoring the conduct of voting and vote count at the polling stations and tabulation at the superior election commission. Observers had the opportunity to report about these violations to the superior territorial election commission and the CEC RK, which telephone numbers were posted on the information boards of precinct election commissions. But no observer of the OSCE/ODIHR Mission did it.
The Oblast Election Commission of Karagandy oblast reported that “in all polling stations during the vote count there were observers, including international ... in all territorial election commissions upon receiving the protocols of precinct election commissions there were observers, including international”, and further “the oblast election commission has not received reports on violations” (ref. No. 45 of 25 September 2015). The same is writted by West-Kazakhstan oblast election commission (ref. No. 97 of 25 September 2015) “claims from the proxies of candidates, observers by the territorial election commissions, courts and prosecutor's offices have been reported”. Zhambyl Oblast Election Commission (ref. No. 26 of 9 September 2015) noted that “international observers did not express any dissatisfaction; allegations on shortcomings have not been reported”. This also was reported in the letters of all other oblast, Astana and Almaty cities election commissions.
Also, there were no critical statements on limiting the observation of procedures of voting, counting and tabulation of results from the part of observers of TurkPA, CIS, SCO and other international organizations. For example, in the Conclusion of the Mission of international observers from the Parliamentary Assembly of Turkic-speaking countries (TurkPA) it was noted that “on the day of voting, on 26 April 2015, international observers from TurkPA visited polling stations No. 4, 86, 88, 97, 100 and 104 in Astana city, where they had the opportunity to form a personal impression of the voting process at different stages - from the opening of polling stations till counting the votes and the tabulation the election results”.
In the Statement of the CIS Mission of observers on the results of monitoring the preparation and holding of early election of the President of the Republic of Kazakhstan, on 26 April 2015, it was reported that “the members of the Mission monitored the vote count and noted that it was held openly in conditions providing visibility of the procedure of counting ballots”.
Also, in the Statement of the Mission of observers from the Shanghai Cooperation Organization it was stated that “on 26 April 2015 members of the Mission visited 53 polling stations in the cities of Astana, Almaty, Karagandy, Kokshetau, Temirtau, Shymkent, in Akmola and South-Kazakhstan oblasts. Mission ... declares that the work of precinct election commissions on all of the polling stations was held in accordance with the requirements of the election legislation of the Republic of Kazakhstan”.
XIII. Election Day
58. Election day generally proceeded in an orderly manner, but serious procedural errors and irregularities were observed throughout the voting, counting and tabulation processes. Numerous indications of ballot box stuffing were noted throughout the day (pages 3, 19).
The CEC RK standpoint. International observers of the Missions of CIS, SCO and other international organizations, from foreign states noted that the process of voting, counting and tabulation of results at the early election of the President of the Republic of Kazakhstan took place freely in accordance with the national electoral and in democratic order.
According to the opinions and statements of many other both international and local observers, who were present at polling stations, the real opportunity to express their will was provided. Also, efficient work of members of precinct election commissions, who quickly and professionally addressed all arising procedural issues at polling stations, was noted.
In accordance with sub-clause 5 clause 2 of article 20-1 of the Constitutional Act on Elections observers, proxies and representatives of media must base their critical observations on documented, true and verifiable facts.
However, the OSCE/ODIHR Mission took no notice of the CEC RK Comment of 14 May 2015, where the CEC RK in order to clarify all the circumstances asked the OSCE/ODIHR Mission to provide information on the numbers of the polling stations, at which, according to the views of observers of the Mission, the above-mentioned violations were identified.
In their letters all the oblast election commissions of the Republic of Kazakhstan did not confirm any fact of ballot stuffing. For example, in its letter (ref. No. 97 of 25 September 2015) West-Kazakhstan oblast election commission reported that the use of dirty technologies on voting day was not observed, the facts of ballot box stuffing at the polling stations of the oblast were not revealed. Or the territorial election commission of Almaty city reported that election commissions of the oblast have not received any act, any application on allegedly ballot stuffing either on the voting day or the following days (ref. No. 75 of 24 September 2015). The absence of any evidence of ballot stuffing at polling stations was reported in letters of Karagandy (ref. No. 45 of 25 September 2015) and Akmola (ref. No. 65 of 8 September 2015) and other oblasts election commissions.
Moreover, the OSCE/ODIHR Mission did not provided any number of specific polling stations, where allegedly massive ballot box stuffing took place, and did not answer whether the observers of the OSCE/ODIHR Mission witnessed the facts of such stuffing, and on what grounds they have determined the stuffing ballots in the ballot boxes.
A. Opening and Voting
59. While the greater part of opening procedures were followed, some procedural errors were noted: the ballot box seal numbers were not recorded in the PEC opening protocol in 9 cases observed, and the number of received ballots was not announced to observers in 22 cases. Unauthorized persons were present in 12 cases; in 2 of which, they were interfering with or directing the work of PECs (pages 19-20).
60. The process, however, deteriorated during voting. The voting process was assessed as bad or very bad in 11 per cent of observations, which is significant. Serious irregularities were noted, including indications of ballot box stuffing in 47 cases, series of seemingly identical signatures on the voter lists (12 per cent of observations), group voting (7 per cent), proxy voting and improperly sealed ballot boxes (4 per cent each), cases of multiple voting (2 per cent), and voters being pressured for whom to vote (1 per cent), which included persons filming voters coming in and out of polling stations. Measures against possible multiple voting were not always respected by PECs. This included not retaining the AVC (8 per cent) or signing the voter list when issuing the ballot (3 per cent). Throughout the voting process, important procedures were not followed in nine per cent of polling stations observed, including: not signing ballots before being issued to voters (nine per cent), which should make them invalid when counted; voters not marking their ballots in secrecy or their choice being visible when casting the ballot (seven per cent); and voters voting without proper ID (four per cent). Unauthorized persons were present in six per cent of polling stations observed, and in two cases they were interfering with the work of the PEC. Further, overcrowding was reported inside five per cent of polling stations observed and almost half of the polling stations observed were not accessible to voters with disabilities (page 20).
B. Counting
61. The vote counting was assessed as bad or very bad in almost half of the 95 polling stations observed (46 cases); this is a substantial figure. Significant procedural problems were noted, including PECs not determining the numbers of: voters based on signatures on the voter list (in 46 polling stations observed), absentee voters (33 cases), ballots issued by each PEC member (57 cases) and signed requests for mobile voting (28 cases). Additionally, PECs did not cancel unused ballots in 20 observed cases, did not mix the ballots from mobile and stationary ballot boxes (33 cases), did not cross-check the protocol’s control equations (40 cases), and did not correctly fill in the protocol (21 cases). PECs had difficulties filling in protocols (in 80 polling stations observed), and in 10 cases they pre-signed the protocol. There were indications of ballot box stuffing (4 cases), and seals of ballot boxes were not intact (3 cases). Unauthorized persons were present in 87 cases; in 4 cases they were interfering with or directing the work of PECs. Collectively, this meant that an honest count, as required by paragraph 7.4 of the 1990 OSCE Copenhagen Document, could not be guaranteed (footnote 56: Paragraph 7.4 of the 1990 OSCE Copenhagen Document commits participating States to “ensure that vote s are cast by secret ballot or by equivalent free voting procedure, and that they are counted and reported honestly with the official results made public”) (page 20).
The CEC RK standpoint on points 59, 60, 61. The CEC RK cannot comment a number of the mentioned procedural errors identified by the OSCE/ODIHR Mission, because a request to provide detailed information on the numbers of polling stations, with indication of settlements, cities or other inhabited localities where these procedural violations were observed, the OSCE/ODIHR Mission did not provide any information at all.
In accordance with article 20-2 of the Constitutional Act on Elections, international observers are eligible to inform the members of election commissions about their observations, revealed violations, to submit recommendations, to make public statements.
However, in the letters of the territorial election commissions of the country it was said that the reports on various violations in the process of voting and vote count on the election day were not received by these commissions. Also, no complaints on these and other procedures of voting were submitted by other stakeholders of electoral process to the CEC RK and the prosecutors’ offices.
For example, Aktobe oblast election commission in its letter (ref. No. 46 of 11 September 2015) reported that on the day of voting the oblast was visited by 37 observers from foreign states and international organizations, including 16 observers of the OSCE/ODIHR Mission. However, no critical observations on the course of voting, vote count were expressed by any of the observers. Appeals and statements to the electoral commissions were not submitted by anyone.
It was also approved by Kostanay oblast election commission (ref. No. 54 of 15 September 2015): “appeals, complaints, statements from voters, proxies of candidates to President of the Republic of Kazakhstan, observers with regard to putting pressure on voters, that members of precinct election commissions did not retain absentee vote certificates as well as with regard to other critical observations were not submitted to the election commissions of the oblast”.
The territorial election commission of Astana city (ref. No. 44-GIK of 28 September 2015) also reported that “all election procedures at the polling stations were conducted in accordance with the Constitutional Act on Elections. Complaints and applications on violations of the electoral process to the city election commissions have not been submitted”.
The facts of violations outlined above by the OSCE/ODIHR Mission are not confirmed by the letters of Pavlodar (ref. No. 22 of 11 September 2015), Mangistau (ref. No. 605-605/14 of 10 September 2015), Zhambyl (ref. No. 26 of 9 September 2015) and Kyzylorda (ref. No. OSK-02/208 of 10 September 2015) oblast election commissions.
Critical observations on stuffing the faked-up paper-ballots in the ballot-boxes cannot be true as the ballot-boxes are transparent: such ballots would be immediately caught the eye of many observers. Such stuffing the OSCE/ODIHR observers had to find during the process of vote count at polling stations after 20:00 hours. They were all present at the counting of ballots, but none of them said at that time the ballot stuffing was confirmed.
The OSCE/ODIHR Mission has repeatedly criticized the procedural aspects of the conduct of elections in the Republic of Kazakhstan, by does not reinforce them by appropriate evidence.
62. Several days before election day, TEC North Kazakhstan decided that 97 polling stations could close earlier on logistical grounds. The TEC stated that it did so to allow distant PECs to have time to arrive at DECs in time for the tabulation, which is a usual practice but contrary to the law. It is unclear to what extent registered voters were notified about such changes (page 20).
The CEC RK standpoint. In accordance with article 38 of the Constitutional Act on Elections territorial election commissions have the right to change the time of beginning and finishing the voting.
In the letter of the North-Kazakhstan oblast election commission (ref. No. 61 of 10 September 2015) its Chairman reported that information about the changes in time for the vote has been officially published in 26 district and 2 city newspapers. An additional notification was the information about changing the time of beginning and finishing the voting, which was inscribed in the invitations to the election. These invitations were given in advance to each registered voter for each polling station.
Thus, the actions of the North-Kazakhstan oblast election commission were lawful.
C. Tabulation and Announcement of Results
63. The tabulation process was negatively assessed in 18 of the 95 DECs observed. Compliance with procedures varied between districts, indicating a lack of clear guidelines. A number of key procedures were not followed, including PECs completing protocols at the DEC premises at 27 DECs visited. Figures in the PEC protocol were not always reconciled correctly in 42 DECs observed. In 22 DECs visited, PEC protocols were changed without a formal decision. Most DECs tabulated the PEC results electronically, but OSCE/ODIHR EOM observers were not allowed to observe the computer tabulation, diminishing the transparency of the process (page 21).
The CEC RK standpoint. This observation is not grounded by specific information about public election commissions were these violations.
According to the letter of the General Prosecutor’s Office of the Republic of Kazakhstan ref. No. 2-010732-15-23999 the prosecutors’ offices did not received any complaint concerning the correction of data in the protocols on voting results, or the replacement of protocols in district election commissions.
The CEC RK and prosecutors’ offices have not received any complaints regarding the correction of data in the protocols without an official decision, procedures for vote count, limiting observers to monitor the computer tabulation of the results from voters, proxies, candidates to President, local and international observers, representatives of local and foreign media.
The facts provided by the OSCE/ODIHR Mission do not find their confirmation in letters to all territorial election commissions of the country. For example, the Karagandy oblast election commission in the letter (ref. No. 45 of 25 September 2015) makes statement that during vote count any act of violation of this procedure as well as appeals or complaints of numerous local and international observers were not filed by the territorial election commission. On the contrary during input of data from these polling stations on the summary tables in electronic format observers were admitted to monitor the computer tabulation of results. However, at that time one of observer of the OSCE/ODIHR Mission has expressed the interest. Also, in its letter (ref. No. 75 of 24 September 2015) the territorial election commission of Almaty city also reported about non-submission of acts, appeals on alleged violations of the procedure of vote count. The absence of evidence of mathematical errors in the result protocols of the polling stations of the West-Kazakhstan oblast was also reported in the letter of West-Kazakhstan oblast election commission (ref. No. 97 of 25 September 2015). The same was reported in all the other letters of the territorial election commissions of the country.
Thus, the information about violations at the polling stations, supposedly revealed by the OSCE/ODIHR Mission is not confirmed.
64. Transparency was further limited as PEC results protocols were not posted for public scrutiny, as required by law, in more than a quarter of the cases observed. Also, three TECs declined to provide their tabulation protocols to the OSCE/ODIHR EOM (page 21).
The CEC RK standpoint. The OSCE/ODIHR Mission needs to provide specific arguments and evidence, proving the fact of non-posting by precinct election commissions of protocols on the results of vote count for public scrutiny with indication of the numbers of the polling stations where these cases were fixed. Moreover, saying about the revealed violations without providing concrete evidence is very unprofessional.
If the OSCE/ODIHR Mission provided the CEC RK with information about the precinct and territorial election commissions, where these violations occurred, the CEC RK would take all measures to eliminate these violations.
In addition, complaints and appeals on non-posting protocols on the results of voting for public scrutiny have not been received from any stakeholder of electoral process.
The statement on declining to provide tabulation protocols to observers of the OSCE/ODIHR Mission is refuted by letters from all territorial election commissions of the country. For example, according to the letter of West-Kazakhstan oblast election commission (ref. No. 97 of 25 September 2015) copies of protocols signed by members of commission, were immediately posted at the polling station for public scrutiny and were kept in the premise for two days; they were also issued to all persons present at the procedure of vote count. The same was confirmed by Karagandy oblast election commission (ref. No. 45 of 25 September 2015): “All result protocols of precinct election commissions were posted for public scrutiny, as it is required by law”. And this is said in each letter the other territorial election commissions of the country.
65. The OSCE/ODIHR EOM collected 144 PEC protocol results; 111 DEC tabulation protocols and 12 DEC results tabulation sheets (forms used by DECs to aid in the calculation of result figures for inclusion in the protocols); and 8 TEC protocols. Of these, 26 PEC, 12 DEC and 3 TEC protocols contained mathematical errors. In various protocols reviewed, a total of 145 polling stations showed 100 per cent turnout, and 12 had a turnout higher than 100 per cent (page 21).
The CEC RK standpoint. If the OSCE/ODIHR Mission provided data on collected protocols, CEC RK would give precise mathematical explanations on all data in protocols and summary tables.
Territorial election commissions of the Republic of Kazakhstan do not confirm the fact of presence of mathematical errors in the tabulation protocols. For example, the Karagandy oblast election commission in the letter (ref. No. 45 of 29 September 2015) reported while receiving the protocols of precinct election commissions there were no cases mathematical errors. For example, territorial election commission of Almaty city (ref. No. 75 of 24 September 2015) and West-Kazakhstan oblast election commission (ref. No. 97 of 25 September 2015) made statements that no acts, appeals and complaints against the actions of precinct election commission on alleged violations taking place on election day or in the days that followed it have been filed by election commissions.
In other words, the critical observation of the OSCE/ODIHR Mission is not founded by specific information about election commissions where these violations took place. The CEC RK considers these critical observations as unfounded, as they are not proved by any of the territorial election commission of the country.
Also Karagandy oblast election commission (ref. No. 45 of 29 September 2015) reported that a 100 per cent voter turnout was confirmed only at polling stations in some rural areas. However, this fact should not be considered as a shortage, since every citizen has the right to come to the polling station and make his/her well-informed choice. Therefore, a 100-percent voter turnout shows the interest of citizens to participate in this important electoral event, their political activity.
The CEC RK requests the OSCE/ODIHR Mission to provide specific information on 12 cases of the voter turnout of more than 100%. We believe that in these cases, observers of the OSCE/ODIHR Mission did not take into account the additional voters who came to the polling station with absentee vote certificates and amounted the total number over the list of voters at this polling station.
66. Additional and substantial discrepancies were observed when reviewing other tabulation documents. For example, the election results as recorded in 21 PEC counting protocols differed from the respective DEC tabulation sheets in all but one case. In addition, the tabulation protocol of TEC Almaty City contained discrepancies with the corresponding its DECs tabulation protocols. While these differences may have been the result of official recounts, the OSCE/ODIHR EOM was not informed of any recounts being ordered or of any complaint against results being discussed by a DEC, TEC or the CEC (page 21).
The CEC RK standpoint. The territorial election commission of Almaty city (ref. No. 75 of 24 September 2015) reported that tabulation sheet and protocol of Almaty city election commission on the results of vote count at the early election of the President of the Republic of Kazakhstan, called on 26 April 2015, were compiled on the basis of tabulation sheets and protocols submitted by district election commissions. All final protocols of election commissions were carefully checked and inspected. The results of vote count were announced and posted for public scrutiny. However, any kind of acts, appeals and complaints on alleged discrepancies in tabulation protocol of Almaty city election commission and in the corresponding tabulation protocols of district election commissions have not been submitted from proxies of candidates to President or observers, both local and international.
No complaints from anyone else on these and on any other voting procedures were filed to the CEC RK or the prosecutor's offices.
We note that the above-mentioned critical observation of the OSCE/ODIHR Mission does not correspond to reality.
67. The CEC announced voter turnout at regular intervals during the day, culminating in a final voter turnout of 95.2 per cent. This varied between 97.6 per cent in Atyrau region and 78.3 per cent in Almaty city. OSCE/ODIHR EOM observers estimated that the number of voters casting their ballots was lower than officially reported (footnote 60: Throughout election day, OSCE/ODIHR EOM observers estimated the number of voters that voted during their stay in each polling station observed. These numbers were used to estimate the total turnout and then compared with the turnout figures given by the authorities). Analysis of the CEC turnout figures reported during election day show that some regions were processing between 186 and 270 voters per hour at all polling stations within a given time period, when the OSCE/ODIHR EOM observed between 43 and 65 voters being processed per hour (footnote 61: Turnout in Almaty region increased from 26.1 per cent to 60.7 per cent between 10:00 and 12:00; an increase of 34.6 percentage points. During that period, 327,025 voters voted in the Almaty region or an average of 3.1 voters per minute. South Kazakhstan at 12:00 had 32.6 per cent and at 14:00 had 77.3 per cent, an increase of 44.7 percentage points in two hours; in this period, 560,766 voters voted in the South Kazakhstan or 4.5 voters per minute. Atyrau region had 11.1 per cent at 10:00 and 47.5 at 12:00, an increase of 36.4 percentage points; in this period, 110,902 voters voted in Atyrau region or 4.0 voters per minute). Turnout was, on average, 24 per cent higher in polling stations where series of seemingly identical signatures were observed on the voter list (page 21).
The CEC RK standpoint. High voter turnout has been achieved due to coordinated work of the electoral authorities, the media, headquarters of candidates of President by campaigning of population, which has led to the active participation of citizens in the election.
Atyrau oblast election commission (ref. No. 78 of 25 September 2015) reported that the election was participated by 297,728 persons or 95.75%. The turnout on voting day, as of 10:00 am of local time was 33,914 persons, as of 12:00 am – 144,807 persons. That is, in this specified period 110,893 voters have casted votes, respectively, on average 55,447 people voted per one hour across the oblast. Taking into account the fact that 232 polling stations were formed in the oblast, on average 239 people have voted at one polling station per one hour. If we consider that each polling station was equipped with 5 and more polling booths, and 5 members of the commission issued ballots, then per one minute with such turnout it was possible to vote not by 4, as the OSCE/ODIHR Mission writes, but by 5 or 6 voters.
The territorial election commission of Almaty city (ref. No. 75 of 24 September 2015) pointed out that the voter turnout in Almaty was 78.3%. Voting was conducted at 513 polling stations. Given the large number of voters in the city (more than 1 million people), the turnout in Almaty is traditionally less than in other regions of the country.
In the letter of the South-Kazakhstan oblast election commission (ref. No. 114 of 11 September 2015) the fact that voter turnout was high in the "peak" hours, i.e. from 12:00 to 14:00, was confirmed. A polling station in the oblast have been equipped on average with 5 polling booths and 2 stationary ballot-boxes as well as at each polling station 5 members of the commission operated, allowing to quickly and efficiently serve a large number of voters.
Almaty oblast election commission in its letter (ref. No. OK-01/60 of 11 September 2015) states the following. Reported in the Final Report of the OSCE/ODIHR Mission blame that some regions processed between 186 and 270 voters per hour at all polling stations within a given time period, when observers recorded between 43 and 65 voters being processed per hour, is unfounded. At the time of election 883 polling stations functioned across the oblast and observers simply could not physically be present at all polling stations at the same time.
Moreover, the OSCE/ODIHR observers to give assessment of the voter turnout needed to observe in one polling station throughout the whole voting period. But they did not do it. Therefore, this critical observation is incorrect.
68. The CEC did not publish results broken down by district or polling station, which diminished the overall transparency of the process (footnote 62: Section 3.2.xiv of the 2002 Venice Commission’s Code of Good Practice in Electoral Matters recommends that “results must be transmitted to the higher level in an open manner”) (page 22).
The CEC RK standpoint. Section 3.2.xiv of the Venice Commission’s Code of Good Practice in Electoral Matters as of 18 October 2002 is read as follows: “results must be transmitted to the higher level in an open manner”. Thus, it means that here the talk is about the openness of the process of transmission of protocols on the results of vote from precinct election commissions to territorial election commissions and further to the CEC RK; and this was provided by the corresponding election commissions.
This section has no any relation to the publication by the CEC RK of the results broken down by district or polling station, which follows from the content of section 3.2.2.5 “Transferring the results” of the Explanatory Report to the Code of Good Practice. Therefore, to say that the CEC RK did not publish the results broken down by district or polling station, which diminished the overall transparency of the process, and at the same time to refer to the provision of a document, which is not relevant to this issue, is incorrect.
The CEC RK published the preliminary and final information on the election results broken down by oblast in online mode, which was widely covered in the media.
The CEC RK acted within the framework of the electoral legislation of the Republic of Kazakhstan, which contains no provision on the mandatory publication of the results broken down by district or polling station.
List of Abbreviations
ANSDP – All-National Social-Democratic Party
AVC – absentee vote certificate
CCTS – Cooperation Council of Turkic States
CEC – the Central Election Commission of the Republic of Kazakhstan
CIS – Commonwealth of Independent States
CPK – Communist Party of Kazakhstan
CPPK – Communist People’s Party of Kazakhstan
CSC – Citizen Service Center
DPK – Democratic Party of Kazakhstan
EOM – Election Observation Mission
ICCPR - the International Covenant on Civil and Political Rights
NGO – non-governmental organization
ODIHR – Office for Democratic Institutions and Human Rights
OSCE – Organization for Security and Cooperation in Europe
PA – public association
PEC – Precinct Election Commission
PPK - Party of Patriots of Kazakhstan
RK – Republic of Kazakhstan
RPA – Republican Public Association
SCO – Shanghai Cooperation Organization
TEC – territorial election commission
Turk PA – Parliamentary Assembly of Turkic-speaking countries
UN – United Nations Organization
USA – United States of America
The Central Election Commission of the Republic of Kazakhstan
National Flag of the RK
National Emblem of the RK
National Anthem of the RK
