Comment

of the Central Election Commission of the Republic of Kazakhstan to the Statement of Preliminary Findings and Conclusions of the International Mission of the OSCE/ODIHR, OSCE PA, PACE on observation of early parliamentary election in the Republic of Kazakhstan called on 20 March 2016

 

City of Astana, 5 April 2016

 

The Central Election Commission of the Republic of Kazakhstan (hereinafter – the CEC of RK) is grateful to the International mission of OSCE/ODIHR, OSCE PA, PACE (Parliamentary Assembly of the Council of Europe) on observation of 20 March 2016 early parliamentary election in Kazakhstan (hereinafter – international mission of OSCE and PACE) that it positively assessed the following aspects of election of deputies of the Mazhilis of Parliament in 21 March 2016 Statement of preliminary findings and conclusions.

CEC of RK qualifies assessment of the international mission of OSCE and PACE mostly on norms of the basic OSCE document on electoral issues – Document of Copenhagen Meeting of the Conference on Human Dimension of the CSCE (OSCE) of 29 July 1990 (hereinafter – Copenhagen Document). Extracts from the text of the Mission’s Statement are given in Italics; the full versions of abbreviations are given in the end of this comment.

 

1. The 20 March early parliamentary elections were efficiently organized, with some progress noted. Election day was efficiently organized (pages 1, 3, 13).

By this statement the International mission of OSCE and PACE recognizes that Kazakhstan has fulfilled the requirements of paragraphs 5.1 and 6 of Copenhagen Document on the organization of free elections, on ensuring the transparency of electoral process and election administration.

 

2. Candidate registration was inclusive and the CEC registered all 234 candidates nominated by six political parties by the legal deadline of 19 February. The CEC registered all 234 candidates nominated by six political parties through nationwide party lists by the legal deadline of 19 February (pages 2, 7).

Thus, the Mission of OSCE and PACE witnesses that Kazakhstan ensured implementation of the provisions of paragraph 7.5 of Copenhagen Document by respecting the right of citizens to seek political office as representatives of political parties without discrimination.

 

3. Candidates were generally able to campaign freely. Contestants were generally able to campaign freely throughout the country. he participation of six parties provided voters with some alternatives (pages 1, 2, 8).

To this extent, the OSCE and PACE Mission confirms that the Republic of Kazakhstan met the requirements of paragraph 7.7 of Copenhagen Document by providing parties and candidates with opportunity to freely express their views and qualifications and the voters to learn and discuss them and to cast their vote free of fear of punishment.

 

4. Positively, state-funded media showed a noticeable effort to meet formal requirements to provide contestants with equal access. During the campaign period, media covered all contending parties (pages 1, 2, 11)

Hence, the OSCE and PACE Mission gives evidence that the Republic of Kazakhstan has fulfilled its obligations under paragraph 7.8 of Copenhagen Document providing unimpeded access to state-funded media on a non-discriminatory basis for all political parties and individuals wishing to participate in the electoral process.

 

5. The authorities invited international observers in an open and unrestricted manner. As of 14 March, the CEC accredited 817 observers from the OSCE/ODIHR, the OSCE PA, PACE, the CIS, the Shanghai Cooperation Organization, the Parliamentary Assembly of Turkic-Speaking Countries, the Organization of Islamic Cooperation and several foreign countries. The OSCE/ODIHR EOM has learned of a number of civil society organizations that observed the parliamentary elections both nationwide and regionally (pages 1, 13).

The Republic of Kazakhstan has once again fulfilled its obligations under paragraph 8 of Copenhagen Document inviting international observers to election and allowing them to observe it to the extent permitted by law as well as ensuring transparency and openness of electoral process the local observers.

 

6. The laws regulating elections aim to provide for fundamental civil and political rights (page 1).

This means that the OSCE and PACE Mission says about Kazakhstan’s compliance with the fundamental provisions of Copenhagen Document on the recognition and full acceptance of the supreme value of the human personality.

 

7. Positively, the Central Election Commission (CEC) stated that it is preparing a comprehensive proposal of amendments to the Election Law to be considered in 2017 with a view to addressing previous OSCE/ODIHR recommendations (pages 1, 2, 5).

Accordingly the OSCE and PACE Mission believes that the Republic of Kazakhstan follows the directions of paragraph 13.1 of Concluding Document of the Vienna Meeting 1986 of representatives of CSCE participating states held on 15 January 1986 that the participating states will develop their laws, regulations and policies in the field of civil and political rights and fundamental freedoms and put them into practice in order to guarantee the effective exercise of these rights and freedoms.

 

8. Technical preparations for the elections were administered efficiently and in compliance with legal deadlines. The CEC sessions were open to and regularly attended by observers, media and political party representatives. Since the announcement of the elections, the CEC adopted and posted on its website a number of decisions (pages 1, 5).

The Republic of Kazakhstan has fulfilled the provisions of paragraphs 6, 8 of Copenhagen Document ensuring effective organization of elections as well as transparent and open electoral process in accordance with the letter and spirit of the Copenhagen Document.

 

9. The new requirement for the CEC to publish the total amount of funds received and spent by each party twice a month during the campaign is a positive development (page 2).

As we can see, the Republic of Kazakhstan has put into practice the provisions of paragraph 7.6 of Copenhagen Document providing political parties with the necessary legal guarantees in terms of ensuring transparency in campaign financing that enabled them to compete with each other on a basis of equal treatment before the law and by the authorities.

 

10. Overall, 47 out of 234 candidates on party lists (20 per cent) were women. Women also comprised 34 and 46 per cent of Regional and Territorial Election Commission members, respectively, and 75 per cent of Precinct Election Commission members. The current CEC has six members, two of whom are women. As per the CEC data, 34 per cent of REC members and 25 per cent of REC chairpersons, as well as 46 per cent of TEC members and 27 per cent of TEC chairpersons are women. On 26 February, a formal board meeting of the APK nominated a list of nine candidates, among whom two females (pages 2, 5, 11).

Therefore, the Republic of Kazakhstan has fulfilled obligations under paragraphs 40, 40.2, 40.4, 40.8, 40.10 of Document of the Moscow Meeting of the Conference on Human Dimension of the OSCE of 3 October 1991 on ensuring equal opportunities for full and equal participation of men and women in the management of state affairs.

 

11. The law provides sufficient opportunity for voters and parties to bring complaints about the electoral process before the courts, higher-level commissions and prosecutors. The Election Law provides the opportunity for complaints about the decisions, actions or inactions of the election commission or local authorities, as well as violations of the law. Recent amendments to the election law addressed previous ambiguities and clarified that the Supreme Court has jurisdiction over all appeals of CEC decisions (footnote 52: Supreme Court judges are nominated by the President and confirmed by the Senate) (pages 3, 12).

Thus, the Republic of Kazakhstan has implemented obligations under paragraphs 5.1, 5.3, 5.5-5.19, 6, 7.7 of Copenhagen Document ensuring adequate legal protection to all participants of the electoral process.

 

12. The few complaints filed were promptly addressed by courts and prosecutors (pages 3, 12).

Courts and prosecution bodies act in accordance with the requirements of the election legislation concerning terms of consideration of complaints and appeals, thus they have fulfilled the requirements of paragraphs 5.3, 5.5, 5.9-5.12, 5.16 of Copenhagen Document, which state about obligation of public authorities to comply with the constitution and act in a manner consistent with law, in accordance with the system established by law, to ensure equal, effective legal protection for people under the law.

 

13. Trainings of lower-level election commissions were conducted by higher-level election commissions using printed and video materials produced by the CEC. The methodology used during the trainings varied and ranged from theatre-style lecturing to interactive tools (page 6).

Hence, the Republic of Kazakhstan has implemented obligations under paragraphs 7.3, 7.4, 7.7 of Copenhagen Document ensuring continuous improvement of the professional level of the members of election commissions.

 

14. The CEC produced a range of informative voter education and awareness videos including on voter registration, voting procedures, as well as on participation of persons with disabilities, which were regularly aired on various TV channels in both Kazakh and Russian languages (page 6).

Accordingly, the CEC RK has taken measures to implement universal suffrage, to comply with the necessary voter registration procedures, election day procedures, implementation of rights of persons with disabilities, to inform electorate about the preparation and conduct of election that is fully consistent with the letter and spirit of the provisions of paragraphs 7.3, 7.4 and 7.7 of Copenhagen Document on guaranteeing principles of universal and equal suffrage.

 

15. The nationwide electronic voter register is maintained by the CEC. The total number of voters as of 1 January 2016 was 9,791,165 of whom 14,013 were registered abroad. Voter lists were compiled based on voters’ place of residence and printed by the Akimats (local administration). Voters who wished to vote in a location different from their place of permanent residence could do so by requesting a temporary change of registration 30 days prior to election day. Most OSCE/ODIHR EOM interlocutors did not express concerns regarding the accuracy of voter lists (page 7).

International mission of OSCE and PACE recognizes that the Republic of Kazakhstan has fulfilled its obligations under paragraph 7.3 of Copenhagen Document guaranteeing universal and equal suffrage to adult citizens by compilation and maintenance of accurate voter lists and giving citizens the opportunity to vote in the place of temporary stay.

 

16. As of 4 March, voters could review the voter lists and request corrections of discrepancies in their records (footnote 27: Voter lists established in special polling stations in rest-homes, various medical centres, hard-to-reach places, distant pastures, detention centres, representative offices of the Republic of Kazakhstan abroad, and on ships sailing on election day as well as in military units are posted five days before election day). Voters could also check their registration details and the location of their polling stations on the internet. In addition, as of two weeks before election day, voters could apply for an Absentee Voting Certificate (AVC), which allows them to vote in any polling station outside the city, town or village where they are registered. Voters could register on election day based on a certificate of residence issued by the Citizen Service Centre (footnote 28: The Citizen Service Center falls under the Ministry of Investment and Development. There is one such center in each administrative level) (page 7).

The Republic of Kazakhstan by ensuring full transparency of verification of voters’ lists, raising awareness among citizens about location of polling stations via accessible communication networks, providing with opportunity to vote by absentee vote certificates, thus has implemented its obligations under paragraphs 7.3 and 7.7 of the Copenhagen Document to guarantee principles of universal suffrage and free voting.

 

17. Campaign tools used by most contestants included door-to-door canvassing and leafleting, small mobile street gatherings, indoor meetings and the use of party-reception centers where citizens were provided with advice on how to resolve their daily problems and informed of the party activities. All parties had access to the places designated for posting materials. Most parties organized meetings with voters in state-run and private enterprises, in educational institutions, libraries and cultural centers (page 9).

In this statement the OSCE and PACE Mission declares that the Republic of Kazakhstan has fulfilled the requirements of paragraphs 7.7 and 7.8 of the Copenhagen Document ensuring equal conditions for political parties to hold free and open election campaign.

 

18. Political parties can use their own funds and can receive private contributions to fund campaign activities (footnote 38: Citizens and Kazakhstani organizations can contribute to a political party’s campaign fund except: state bodies or organizations, local self-government bodies, charitable organizations, religious associations, and Kazakhstani legal entities with foreign stock in their charter capital. Anonymous donations are also forbidden). Political parties are obliged to open a dedicated bank account to manage campaign contributions and expenditures, and the bank reports to the CEC on a weekly basis on account activities. The CEC is responsible for overseeing and ensuring the transparency of campaign finances. Following amendments in August 2015 to a CEC resolution, the CEC published a summary of the total amounts received and spent per party twice during the campaign period. Following the elections, political parties are required to submit campaign finance reports on the basis of which the CEC is obliged to publish an overview. The Election Law stipulates that the overview includes the total amount received by each party and the sources of those funds (page 9).

From the excerpt of the text of Statement of International mission of OSCE and PACE it follows that the CEC RK has ensured transparency of election funds of political parties and spending of means from them: thus, the provisions of paragraphs 7.6 and 7.7 of the Copenhagen Document have been fulfilled.

 

19. The Election Law obliges media to present objective campaign coverage and guarantees political parties equal access. The CEC was responsible for overseeing media compliance and performed this task in co-operation with the Committee on Communication, Informatization and Information under the Ministry of Investment and Development (Media Committee) (footnote 43: The Media Committee analysed quantitative coverage (but not the tone) in over 450 media outlets) (page 10).

Thus, the OSCE and PACE Mission recognizes the presence of legal guarantees in Kazakhstan on objective and equal campaign coverage for political parties participated in election, which allowed to implement the provisions of paragraphs 7.7 and 7.8 of Copenhagen Document on conducting political campaigns in a fair and free atmosphere, on providing political parties with equal access to media.

 

20. The campaign was visible in the nationwide media (footnote 44: On 20 February, the OSCE/ODIHR EOM commenced qualitative and quantitative monitoring of seven TV channels: Kazakhstan TV, Khabar TV, KZ24 (state-funded broadcasters), First Eurasian Channel (state-funded joint-venture company), Astana TV, Channel 31 and KTK (private channels); one radio station, Kazakh Radio (state-funded); and six newspapers:, Egemen Kazakhstana, Kazakhstanskaya Pravda (state-funded), Karavan, Liter, Vremya and Zhas Alash (private newspapers). OSCE/ODIHR EOM also observes election-related coverage in the online media, such as www.informburo.kz, www.nur.kz, www.tengrinews.kz, www.zakon.kz, www.365info.kz) (page 10).

Consequently, the nationwide media have fulfilled the requirement of paragraph 7.8 of Copenhagen Document on ensuring unimpeded access of all political parties to media.

 

21. The law provides for debates to be organized by the CEC among political parties which nominated candidates (page 10).

By means of legal enforcement of the right of political parties to hold debates the Republic of Kazakhstan has fulfilled prescriptions of paragraphs 7.6, 7.7 and 7.8 of the Copenhagen Document concerning legal guarantees to conduct election campaigns on the basis of equality before the law, free expression of views and assessments, participation of all political parties without discrimination.

 

22. Most party programmes supported inter-ethnic harmony. Nur Otan, Ak Zhol and Birlik also underlined equality for ethnic groups and CPPK opposed ethnic discrimination and called for inclusive citizenship, NSDP and Auyl pledged to revive the Kazakh language, national identity, traditions and culture. The campaign featured a public declaration by President Nazarbayev in support of the official use of the Russian language (pages 11-12).

Political parties of the country during the campaign showed respect for the rights of all ethnic groups, facilitating the implementation of Kazakhstan's obligations under paragraphs 30-35 of the Copenhagen Document on the effective implementation by the ethnic minorities of their rights and freedoms without any discrimination.

 

23. Most polling stations opened on time, they were well-equipped with all the necessary materials present and the process was overall assessed positively (page 13).

By ensuring the proper opening of polling stations and equipping them with all necessary materials Kazakhstan has fulfilled obligations under paragraphs 6, 7.3 and 7.4 of the Copenhagen Document to ensure the openness and fairness of electoral process.

 

24. The observers wish to thank the authorities for their invitation to observe the election and the Central Election Commission and the Ministry of Foreign Affairs for their assistance. They also express their appreciation to other state institutions, political parties and civil society organizations and the international community representatives for their co-operation (page 14).

Thus, the Republic of Kazakhstan has created necessary conditions for effective monitoring of early election of deputies of the Mazhilis of Parliament by international mission of the OSCE and PACE, other missions, all observers of international organizations, foreign states as well as by representatives of foreign media in full compliance with paragraph 8 of the OSCE Copenhagen Document.

 

25. As for the contestants, the media gave them between 0 and 10 per cent (footnote 46: Khabar TV dedicated 10 per cent of its news coverage to Nur Otan, 9 per cent to each Ak Zhol, Ayul and CPPK, and 8 per cent to each Birlik and NSDP. Other state-funded broadcasters split their news coverage in the following way: Kazakhstan TV – Ayul and CPPK 9 per cent each, Ak Zhol, Birlik and NSDP 8 per cent each, Nur Otan 7 per cent; Channel KZ24 – Ak Zhol, Ayul, Birlik, CPPK and NSDP 7 per cent each, and Nur Otan 6 per cent; Kazakh Radio – 4 per cent to each contestant; First Eurasian Channel – Nur Otan 3 per cent, other contestants received less than 0.5 per cent each) (page 11).

Consequently, the Republic of Kazakhstan has fulfilled obligations under paragraphs 7.6 and 7.8 of the Copenhagen Document on unimpeded access to media for all political parties participating in elections as well as equal coverage of their campaign events.

Summing up the above mentioned International mission of OSCE and PACE recognizes that Kazakhstan has fulfilled its international obligations under 25 main aspects at the recent parliamentary election. We would like to remind that the OSCE/ODIHR EOM Statement of preliminary findings and conclusions at presidential election of 26 April 2015 gave 23 positive assessments and at parliamentary election of 15 January 2012 – 14 positive assessments. As you we have seen from the OSCE assessments, from one election to another the Republic of Kazakhstan has been continuously making progress in the conduct of election campaigns. On 28 March 2016, at the meeting with members of the Central Election Commission of the Republic of Kazakhstan, the Head of OSCE/ODIHR EOM Ambassador Boris Frlec said that the noted by the mission observations did not affect the outcome of election. By saying this, the Mission recognized the legitimacy of the recent parliamentary election.

At the same time, the Central Election Commission of the Republic of Kazakhstan does not fully agree with the following critical comments of the International mission of OSCE and PACE on observation of early parliamentary election and, in this context, it presents its arguments on them.

PRELIMINARY CONCLUSIONS

 

1. Kazakhstan still has a considerable way to go in meeting its OSCE commitments for democratic elections (page 1).

The CEC RK standpoint. The CEC RK strongly disagrees with such assessment by the OSCE and PACE mission on observation of early parliamentary election. The Republic of Kazakhstan undertook and undertakes considerable efforts to bring national legislation and practice into line with international election law, including the OSCE standards.

On 28 March 2016, at the meeting with members of the Central Election Commission of the Republic of Kazakhstan, the Head of OSCE/ODIHR EOM acknowledged that English version of the statement of preliminary findings and conclusions the election assessment does not mean the long way that Kazakhstan has to overcome on the way to comply with OSCE commitments, but “substantial measures to be taken by Kazakhstan to implement its OSCE obligations”. And such measures, if they are perceived by Kazakhstan as corresponding to Copenhagen Document, it may adopt and implement in a short-term period.

Contrary to the opinion of the OSCE and PACE Mission practically all independent observers from the USA and Western Europe stated the opposite. For example, President of International Tax and Investment Center (USA) Daniel Alan Witt assessed the electoral process “as new step forward in the construction of institutes of representative government during constant improvement of democratic elections”. He noted that by observing elections in Kazakhstan for the last 25 years he was convinced that “each electoral process was organized better and better than previous. I can say boldly that these steps are being taken to form strong and permanent democratic institutions” (Kazakhstanskaya Pravda, 22 March 2016, page 9).

With the exception of NSDP the parties, which did not overcome the seven per cent barrier at election, have confirmed the election results and noted that the election was held in equal competitive struggle, all political parties had equal opportunities to conduct campaign, election campaign was held in compliance with Constitution, national and international electoral legal standards (see: newspaper “Vremya”, 22 March 2016, page 2).

 

2. The legal framework restricts fundamental civil and political rights, and comprehensive reform is required (page 1).

The CEC RK standpoint. This assessment contradicts the statement itself made by the OSCE and PACE Mission on page 2 of the Statement of Preliminary Findings and Conclusions that “The laws regulating elections aim to provide for fundamental civil and political rights”. The restrictions contained in the legal framework of Kazakhstan are proportionate and fully comply with the requirements of the Syracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (UN document E/CN.4/1985/4) of 28 September 1984.

 

3. Candidate registration was inclusive and six parties contested the elections, but genuine political choice is still lacking (page 1).

The CEC RK standpoint. By making this statement of the OSCE and PACE Mission contradicts itself. All 234 candidates nominated by six political parties were registered. All participants of the election campaign could take part on equal terms. The competitive environment was provided. Political parties freely held election campaigning, voters were provided with opportunity to freely meet and discuss the party's election platform and respectively they made a genuine political choice, in accordance with which the Mazhilis of Parliament once again became a multiparty.

 

4. The campaign was low-key. Activities increased in the last two weeks, but the campaign remained low key overall (pages 1, 2).

The CEC RK standpoint. This statement of the OSCE and PACE Mission contradicts its own statements on page 10 of the Statement of Preliminary Findings and Conclusions: "the campaign was visible in the nationwide media," on page 9: "all parties had access to the places designated for posting materials", on page 11: "during the campaign period, media covered all contending parties."

Mission of observers from the CIS in the statement on the results of monitoring the preparation and holding of early elections of deputies of Mazhilis of Parliament of the Republic of Kazakhstan (20-21 March 2016) stated that representatives of political parties at meetings with the CIS observers did not express any serious claims to the media on the coverage of their activities during the pre-election period.

The oppositional parties did not believe that election campaign was low-key, as well. For example, NSDP in the statement of 17 March 2016 noted: “during the election campaign to the Mazhilis ... Nationwide Social Democratic Party met with residents of all regions and fully realized its plan to promote democratic program of the development of Kazakhstan.” (see: http://www.osdp.info/o-vyiborah-20-marta-2016-goda-zayavlenie-obshhenatsionalnoy-sotsial-demokratich....

 

5. Analysis and political debate were largely absent (in media), and the blurring of the distinction with the State benefited the ruling party. Generally, an in-depth and comprehensive analysis that would provide voters with a meaningful opportunity to learn about candidates and concrete policies was largely absent (pages 1, 2).

The CEC RK standpoint. All six political parties have been granted a full right to hold campaigning, using all media tools, including debates and interviews. Forms of debates and interviews will certainly involve an analysis of problems, and representatives of parties fully used the possibilities of these forms. Political parties are widely covered their programs in 8,389 materials in the media, most of which were analytical in nature, because in order to attract the electorate to their side the political parties had to conduct an effective election campaign in the media. For example, representative of “Birlik” party during a trip to Atyrau considered the practical aspects of implementation, application of EU environmental standards in the industry of Kazakhstan (Kazakhstanskaya Pravda, 22 February 2016), and CPPK representatives at the meeting with voters in Kokshetau city analyzed the new role of communist ideology in the realities of the XXI century (Kazakhstanstakaya Pravda, 23 February 2016).

Voters were able to receive freely information on the candidates nominated by political parties as well as to get acquainted with their election programs. For instance, pre-election programs of all six political parties, including opposition-minded parties, which were different in the content, have been published in the newspapers “Egemen Kazakhstan” and “Kazakhstanskaya Pravda” dated 20 February 2016. They were also posted on the official Internet resources of political parties, replicated by many print and electronic media. The participation of six political parties provided voters with not a "some", the full and genuine alternative. Till the end of campaign period the state-owned media ensured equal coverage of the pre-election campaign of all six political parties.

 

6. On election day, serious procedural errors and irregularities were noted during voting, counting and tabulation (page 1).

The CEC RK standpoint. International mission of OSCE and PACE, speaking on serious procedural errors and irregularities during voting, counting and tabulation of results, does not present any particular case of such errors and irregularities as well as the evidence of their commitment. CEC considers and will consider such allegations as unfounded, unsubstantiated unless the OSCE and PACE Mission provides the evidence.

Observers of other international organizations, foreign countries, representatives of foreign media did not point to the massive violations at polling stations on election day. On the contrary, they stated that the process of voting, counting and the tabulation of results was held without serious violations. For example, the observer from the Netherlands Johannes Marges, who visited polling stations in Astana, said: "I can say that no infringements occurred" (see: Kazakhstanskaya Pravda, 22 March 2016, page 6). In its statement of 21 March 2016 the Mission of observers from the CIS, which was composed of 301 observers and monitored 2,875 polling stations, that is two times more than the OSCE and PACE Mission, noted that "some violations of the election legislation were not systematic and mass character and did not affect the election results. On the revealed infringements of the CIS Mission informed the Central Election Commission". The mission of observers from the Shanghai Cooperation Organization, which visited 65 polling stations in Astana city, Akmola, Karagandy and Pavlodar regions, pointed out that "during the vote counting Mission representatives did not reveal violations."

 

7. Reform of the legal framework is, however, necessary for it to fully meet international obligations and standards to which Kazakhstan has committed (page 1).

The CEC RK standpoint. In the Republic of Kazakhstan, the process of improving the electoral legislation has never stopped. In recent years, the electoral legislation of the Republic has undergone significant changes in the direction of improvement and adaptation to the changing social and political conditions and now it is almost close to the generally accepted international standards. The process of improving the electoral legislation in Kazakhstan is in the focus of civil society, state bodies, international organizations, including the oppositional parties and non-governmental organizations. This process is open.

It should be noted that the Constitutional Act on Elections, regulating the conduct of elections of the President, the Parliament, maslikhats and other bodies of local self-government, occupies a high status in the hierarchy of legal acts of the Republic of Kazakhstan.

It should be emphasized that the Head of OSCE/ODIHR Mission Daan Everts, who observed the presidential elections of 2011, has repeatedly stressed that the electoral law of the Republic of Kazakhstan meets all the principles for democratic elections. So, it looks like every OSCE/ODIHR Mission has its own opinion about Kazakhstan’s electoral law. We consider our Law as a democratic. Since the initial adoption of the Constitutional Act "On elections in the Republic of Kazakhstan" it was amended and supplemented 16 times in order to improve it and bring it into line with international standards of electoral law. In total 814 changes and additions have been made.

 

8. Restrictive provisions related to suffrage rights, freedoms of assembly and expression have not yet been addressed despite previous OSCE/ODIHR recommendations. There has been little effort to reform election legislation since the 2012 parliamentary elections and most OSCE/ODIHR recommendations are yet to be addressed (pages 1, 5).

The CEC RK standpoint. Guarantees for a clear separation between the state and the party, implementation of the rules on the use and control of absentee vote certificates, publication of the interim financial reports for election funds of political parties, encouraging the media to provide the voters with various and analytical information, ensuring taking timely decisions on disputes relating to elections, guaranteeing the reliability of the voting process shall be considered as implemented recommendations of the OSCE/ODIHR missions.

Many other OSCE/ODIHR recommendations have been implemented in the electoral legislation of Kazakhstan prior to their submission.

 

9. Lower-level election commissions held sessions on an ad-hoc basis without informing stakeholders, which limited the transparency of the process (footnote 16: OSCE/ODIHR observers were not able to attend any lower-level election commission sessions. Some commission members informed the OSCE/ODIHR EOM that session discussions concerned only commissioners) (pages 2, 5).

The CEC RK standpoint. Territorial, district and precinct election commissions, according to the Constitutional law on elections, create conditions for the free acquaintance of all persons with their decisions, which are posted in public telecommunication networks. During the preparation and conduct of the election campaign the sessions of commissions are held at least once every two weeks. At other times, commissions hold their sessions when needed at the initiative of the chairman or at least one third of the commission’s members. Candidates, political parties nominated their party lists, when considering the issues affecting them shall be notified in advance on the sessions of the election commissions and its agenda (see: clauses 3, 6 and 7 of Article 20 of the Constitutional Act on Elections). However, observers of foreign states, international organizations, representatives of foreign mass media have the right to receive information about election campaign in the election commissions (see: sub-clause 2 of clause 6 of Article 20-2 of the Constitutional Act on Elections).

Thus, the Constitutional Act on Elections clearly specifies that the sessions of the territorial, district and precinct election commissions are held with the participation of candidates, political parties, which have nominated their party lists, when considering the issues affecting them. Kazakh election law does not require the presence of international observers and foreign media representatives at the sessions of election commissions. The CEC RK has not received any complaint from candidates to maslikhat deputies and political parties concerning non-admission to the sessions of election commissions.

 

10. The Election Law aims to ensure political party representation in election commissions but does not provide for an enforcement mechanism. One electoral contestant was largely under-represented in lower-level election commissions and questioned the impartiality of election administration (page 2).

The CEC RK standpoint. Constitutional Act on Elections guarantees representation of political parties in 224 territorial, 3,335 district and 9,840 precinct election commissions, where 97,793 members are engaged. However, the Constitutional Act on Elections cannot force political parties to nominate their members in the composition of election commissions. The introduction of such rule could disrupt formation of election commissions and by-election of their members before elections in connection with the possible reluctance of parties to nominate their candidates (for example, the party of "AZAT") or inability to do so due to lack of party members in a given region. NSDP party was represented to a lesser extent in the election commissions as it nominated a small number of candidates. For example, during formation of election commissions in 2014 NSDP presented candidates only in the composition of 14.6% election commissions, and almost all candidates were included in their composition.

 

11. All citizens over 18 years of age have the right to vote, except those declared incompetent by a court or those serving prison sentences, irrespective of the gravity of the crime. This blanket provision poses a disproportionate restriction that is at odds with international obligations, OSCE commitments and good practice (footnote 26: Paragraph 7.3 of the 1990 OSCE Copenhagen Document states that the participating States will “guarantee 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 I.1.1.1.d.iii of the 2002 Council of Europe Venice Commission’s Code of Good Practice in Electoral Matters states that the deprivation of the right to vote must be subject to the proportionality principle. See also Paragraph 14 of General Comment No. 25 to the ICCPR) (page 2).

The CEC RK standpoint. Deprivation of active suffrage in respect of persons who are recognized as incapable or sentenced by a court, is not a violation of international obligations of Kazakhstan. For instance, the Code of Good Practice in Electoral Matters, adopted by Venice Commission of the Council of Europe, dated 16 October 2002, does not exclude the possibility of deprivation of the right to vote on the basis of a criminal conviction for a serious offense (paragraph 1.1.d.iv.). Article 18 of the Convention on the Standards for Democratic Elections, Electoral Rights and Freedoms in the CIS member-states also does not consider as the discriminatory restriction of the right to vote in respect of citizens recognized by the court as incapable, and kept in prison upon conviction. Also it should be noted that after the parliamentary election of 2012 the prison population in Kazakhstan has fallen by more than 25% - from 53.4 to 40 thousand people.

Paragraph 24 of the Copenhagen Document stipulates: "Any restriction on rights and freedoms must, in a democratic society, relate to one of the objectives of the applicable law and be strictly proportionate to the aim of that law." The OSCE and PACE Mission makes reference to paragraph 14 of General Comment No. 25 to the International Covenant on Civil and Political Rights, adopted by the UN Human Rights Committee at 57^th session in 1996. This paragraph is read as follows: “States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.”

Constitutional and current legislation of the Republic of Kazakhstan contain the provisions, which fully comply with the provisions of the above mentioned international documents. Clause 3 of Article 33 of the Constitution of the Republic of Kazakhstan states that “citizens, who have been recognized by a court as legally incapable and who kept in places of confinement under the court’s sentence” “do not have the right to elect and to be elected”. Clause 3 of Article 4 of Kazakh Law on Elections contains the same norms, which means that persons, who kept in places of confinement but are not sentenced, “shall not be deprived of the right to elect and to be elected”. The Criminal Code of the Republic of Kazakhstan of 3 July 2014 contains a list of penalties for committed crimes with an indication of the term of sentence for a particular crime. The penalty for each crime has its own weight and its term of sentence. Conviction (after serving a term of punishment imposed by the court) is removed in accordance with the law and the persons shall have the right to vote and to be elected to any public office of the country. International documents, including the OSCE documents, do not contain prohibition of the rule on the non-participation of citizens in the voting process and the election because of their conviction by a court decision and recognition as legally incapable by a court.

It follows that the statement of the OSCE and PACE Mission about the disproportionate restriction of the rights of Kazakhstani citizens, who are serving prison sentences by court's decision, is incorrect. The election legislation of the Republic of Kazakhstan adheres to the principle of proportionality and respect of their international obligations in this matter.

 

12. By law, independent candidates cannot stand for election and political parties are not allowed to form electoral blocs, contrary to the 1990 OSCE Copenhagen Document and other international obligations and standards (page 2).

The CEC RK standpoint. Paragraph 7.5 of the OSCE Copenhagen Document establishes the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination. The Constitution and the Constitutional Act on Elections provide the right to run for the deputies of the Mazhilis of Parliament to candidates from political parties as well as candidates from the Assembly of People of Kazakhstan. Independent candidates may be self-nominated to all other elected positions - the President of the Republic of Kazakhstan, deputies of the Senate of Parliament, regional, city and district maslikhats. Thus, the practice used in the Republic of Kazakhstan does not contradict the provisions of the OSCE Copenhagen Document, as it does not say that only independent candidates must be nominated to the Parliament.

As to the question of formation of electoral blocs, in Kazakhstan electoral blocs were formed at parliamentary elections in 2004, when this election was held under a mixed electoral system. However, the transition to the proportional electoral system at the election of deputies of the Mazhilis of Parliament in 2007 has led to the exclusion of the norm on electoral blocs, as it would put the parties, which are not involved in the blocks, in the unequal conditions during election.

 

13. Most contestants did not directly challenge the ruling party, thus limiting voters’ genuine political choice (page 2).

The CEC RK standpoint. Political parties, which have nominated their party lists, had different political platforms, which were not only different from the election program of the party “Nur Otan”, but contained a number of criticisms regarding its policies. For instance, the party “Aul” called for review of approaches to study of the history of the Kazakh people, challenged the ongoing urbanization policy and the elimination of the villages (see: http://auyl.kz/ru/pages/predvybornaya_programma). Communist People Party of Kazakhstan (CPPK) criticized the introduction of consumer society values, which, in its view, were alien for Kazakhstan (see: http://knpk.kz/wp/wp-content/uploads/2016/02/Predvy-bornaya-programma-rus-yaz.pdf). Harsh criticism of the ruling party of action was contained in the election program of NSDP (see: http://www.osdp.info/). As we can see, on the contrary, most of parties expanded and promoted the voters’ genuine political choice.

 

14. The dominant position of the ruling party at all levels of government and administration for many years now has effectively blurred the distinction between the State and party, which is at odds with international commitments (page 2).

The CEC RK standpoint. Safeguards to prevent the merging of political parties and the state are established at legislative level in the Republic of Kazakhstan. Article 5 of the Constitution of the Republic of Kazakhstan states: "It is not permitted to establish organizations of political parties in the state bodies." Law of the Republic of Kazakhstan of  15 July 2002 "On Political Parties" prohibits the unlawful interference of the state in the affairs of political parties and political parties in the affairs of the state as well as laying on the political parties the functions of state bodies. Membership of military officers, employees of national security bodies, law enforcement bodies, judges in political parties is prohibited. In the case of admission to military service membership in a political party ceases automatically. Members of Parliament, civil servants may not occupy paid positions in political parties. Donations of state bodies and state organizations to a political party and its structural subdivisions are not allowed. And all these rules are implemented in practice. Violation of these legal provisions entails criminal and administrative liability (see: Article 403 of the Criminal Code of the Republic of Kazakhstan of 3 July 2014, Clause 5 of Article 489 of the Code of the Republic of Kazakhstan of 5 July 2014 "On Administrative Offences"). Thus, we see that “blur of the distinction between the State and party” is not happening.

 

15. The lack of information on donors and how campaign funds were spent limited the transparency of campaign finances (page 2).

The CEC RK standpoint. The OSCE documents do not regulate the procedure for ensuring the transparency of campaign financing. At this election for the first time two interim reports on political parties’ campaign funds were published. According to clause 9 of Article 34 of the Constitutional Act on Elections not later than five days after the establishment of the election results (not later than 28 March) political party was obliged to submit to the CEC RK report on the use of means from its campaign fund. This report was published in the national print media, thereby providing transparency of funding of the last campaign (see: newspapers "Egemen Kazakhstan", "Kazakhstanskaya Pravda" dated 5 April 2016). In addition, information about the sponsors may not be disclosed without their consent. This sponsor’s right as a human right cannot be violated by anyone. But the sub-clause 6 of clause 2 of Article 18 of the Law of the Republic of Kazakhstan of 15 July 2002 “On Political Parties” states that “donations to a political party and its structural subdivisions from anonymous donators are not allowed”. This means that in case of detection of illegal sources of donations, the situation will be under control of the tax and other state bodies of the Republic of Kazakhstan.

In paragraph 2.3.d of the Code of Good Practice in Electoral Matters, adopted by the Venice Commission of the Council of Europe on 16 October 2002, says that “political party, candidates and election campaign funding must be transparent”. Clause 109 of chapter 3.5 if the Code describes that transparency is ensured by publication of detailed information on spending means, allocated for campaign, and by monitoring of financial statuses of elected representatives before and after their term of office. These rules are fully implemented in the Republic of Kazakhstan. And the Code does not contain the requirement to publish information about the sponsors. Thus, we consider this critical observation of the International mission of OSCE and PACE as incorrect.

 

16. The law does not provide for gender quota or other temporary special measures to enhance participation of women in the elections (page 2). (Footnote 32: There are 28 (26.2 per cent) women deputies in the outgoing Majilis and 3 (6.4 per cent) women in the Senate) (page 8).

The CEC RK standpoint. The OSCE documents do not contain the obligation of the state to set up legal quotas for women’s representation in the Parliament. Paragraph 40.8 of the Document of the Moscow meeting of the Conference on the Human Dimension of 3 October 1991 obliges the participating states to "encourage and promote equal opportunity for full participation of women in all aspects of political and public life and decision-making processes", but does not put the goal to set quotas for women’s seats in the parliament.

The proportion of women in the Mazhilis of Parliament of the Republic of Kazakhstan is constantly increasing. If in 2007 17 women deputies (15.9%) were elected, in 2012 – 26 (24.3%), at the time of the dissolution of the Mazhilis of Parliament in January 2016 - 28 (26.2%), then 29 women or 27.1% of the total number of the elected deputies joined the Mazhilis of Parliament of 6^th convocation. This is quite a good result, as a global gender indicator of women's participation in parliaments is 22 %. Thus, the gender ratio in Kazakhstan exceeds the global index by 5.1%. In terms of representation of women in the Mazhilis of Parliament Kazakhstan is ahead of many developed democratic countries of the world: Canada (26.0%), the USA (19.4%), Greece (19.7%), Ireland (16.3%), Japan (9.5%) (see: http://ipu.org/wmn-e/classif.htm). It should be emphasized that in some countries of Northern Europe (Sweden, Norway) gender quotas on a voluntary basis were adopted only by parties when they nominate their party lists at election (see: http://www.quotaproject.org/systemParty.cfm#NO).

Observance of the gender component is one of the most important priorities of our social policy. Gender equality is recognized by us as vital criteria for real well-being of society. Kazakhstan intends to continue to work actively to promote equality between men and women.

 

17. While the Constitution guarantees freedom of expression and prohibits censorship, the presence of numerous penalties in the law stifles public debate and suppresses alternative viewpoints. Despite prior recommendations, defamation remains a criminal offence (page 2).

The CEC RK standpoint. In the absolute majority of developed countries in the world, including in OSCE participating States, norms establishing different kinds of sanctions both criminal law and civil law, aimed at protecting the rights of citizens against unreasonable accusations, libel and insults are established at the legislative level. The Republic of Kazakhstan is also among these countries.

Libel is a serious offense, as it implies spreading of deliberately false information concerning any physical person for the purpose of undermining his honor and dignity and business reputation. Combating libel is one of the most important directions of the state’s activity to protect the rights of a slandered human being. The legal provisions on criminal liability for libel are contained in the criminal law in the form of a number of articles of almost all European countries (Austria, Germany, Italy, Spain, Portugal - a total of 28 mainly western European countries) and it does not restrict freedom of speech in any way. CEC RK does not understand the OSCE/ODIHR persistence on the issue of decriminalization of libel in Kazakhstan, whereas OSCE/ODIHR does not put such a requirement in relation to the above mentioned countries. Besides, no European state discusses or plans to decriminalize libel in its legislation.

At the same time, it should be emphasize that in the footnotes to Articles 373, 375, 376, 378 of the Criminal Code of the Republic of Kazakhstan it is noted that public statements containing criticism of the policy of the President of the Republic of Kazakhstan, of the activity of a deputy of Parliament of the Republic of Kazakhstan, of official activities of a representative of state power do not entail criminal liability. And this is a clear guarantee of freedom of speech, freedom of expression. In addition, the Law of the Republic of Kazakhstan of 23 July 1999 "On mass media" in clause 1 of Article 2 also guarantees the freedom of speech enshrined in the Constitution as well as expression of opinions and beliefs in print and other forms, receipt and spreading information by any means not prohibited by the law.

Thus, liability stipulated by the legislation for intentional and unreasonable public insult, accusation and libel in no way stifles public debate and suppresses alternative viewpoints.

 

18. The media provided little platform-oriented coverage of one of the parties. Extensive reporting on the President’s activities dominated in most media outlets, and the ruling party used his position to its benefit (page 2).

The CEC RK standpoint. No discriminatory treatment of media in respect to NSDP party was noted. For example, within news programs, which did not require financing from campaign fund, the media published 1,924 information materials on the activities of “Nur Otan” party, 1,575 materials on the activities of CPPK, 1,661 materials on the activities of DPK “Ak Zhol”, 1,471 materials on the activities of PP “Birlik”, 1,531 materials on the activities of NSDP, 1,504 materials on the activities of PDPP “Auyl”. As we can see, the coverage of the activities of all political parties was almost equal.

The coverage of activities of the President in his official position is not campaigning since he was not personally involved in the election campaign, did not call voter to call for “Nur Otan” and the ruling party could not use his position to its benefit.

 

19. The law limits the right to appeal the election results to certain senior officials which leaves the contestants without the opportunity to challenge the validity of the results and is not in line with international standards (page 3).

The CEC RK standpoint. According to clause 1 of Article 95 of the Constitutional Act on Elections citizens of the Republic of Kazakhstan have the right to challenge the validity of the election results in a separate administrative-territorial unit, if in the course of election, counting of votes, tabulation of election results violations of election legislation, which do not allow to reliably determine the results of the will of the citizens, have been committed.

As regards the provisions of Article 100 of the Constitutional Act on Elections regarding the consideration by the Constitutional Council of the issue of correctness of holding elections of the Mazhilis deputies in the territories of those administrative-territorial units where violation of Constitution have been established, it is needed to make the following clarification. According to clause 1 of Article 72 of the Constitution and clause 1 of Article 20 of the Constitutional Act of 29 December 1995 "On the Constitutional Council of the Republic of Kazakhstan," the participants of the constitutional process are persons and bodies on the appeals which the constitutional proceedings have been initiated. In the event of a dispute regarding the correctness of the national election, the participants of the constitutional process can be the President of the Republic, chairmen of the chambers of the Parliament, at least one fifth of Members of Parliament (at least 31 deputies) and the Prime Minister. Strong reasons are required for a taking decision on the appeal of the final election results. Serious violations of the law, which do not allow to treat with confidence to the obtained results of the election, must be established.

 

20. Issues raised before the CEC were not considered to be of a complaint nature and were therefore not considered collegially and publicly (pages 3, 12).

The CEC RK standpoint. According to sub-clause 13 of Article 1 of the Law of the Republic of Kazakhstan of 12 January 2007 "On the order of consideration of appeals of physical persons and legal entities" the term complaint is understood as the demand of individual to restore or to protect his violated rights, freedoms or legitimate interests of him or other persons; to eliminate the wrongful actions or inaction of state bodies, local self-government bodies, their officials as well as to cancel their unlawful decisions.

None of the complaints, received by the CEC RK during the preparation and conduct of election, could be qualified as a complaint: they did not contain demands for the restoration of violated human rights and freedoms, elimination of the wrongful actions of public authorities and their officials, cancellation of their unlawful decisions.

For instance, two appeals of NSDP on actions of law enforcement body on seizure of campaign materials (of 23 February 2016) as well as of television channels on improper coverage of NSDP campaign events (of 4 March 2016) have not been proved at examination. Appeal of NSDP of 12 March 2016 on refusal of TV Channel “Khabar” to broadcast campaigning video-materials was misinterpreted by NSDP itself and after elimination of shortcomings it was aired by TV channel. Verbal appeal of NSDP representative T.T. Omarov at the session of the CEC RK of 25 February 2016 on insufficient space, allocated by local executive bodies of Pavlodar oblast for posting campaign materials, was settled quickly and positively. After the CEC RK appeal to akimats of oblasts, cities of Astana and Almaty 223 spaces were additionally equipped across the country, and in total in the Republic 7,842 spaces for posting campaign materials have been installed, which was quite enough for all six political parties, including NSDP.

 

21. National minority issues were not visibly raised in the campaign (page 3).

The CEC RK standpoint. National minority issues were not raised since Kazakhstan undertook and undertakes effective measures to ensure interethnic consent, to preserve and develop cultural, linguistic diversity in all fields. 37 newspapers in 15 languages of ethnic groups, 11 magazines in 11 languages are being published in the country, 14 ethnic theatres in 5 languages operate. More than 97 thousand students are studying in 37 schools with the Uzbek, Tajik and Uighur languages and in 171 mixed schools. More than 3.5 thousand children study traditions, customs and languages of 16 ethnicities in 81 Sunday schools (see: http://assembly.kz/ru/news/informacionnoe-soobshchenie-11).

PRELIMINARY FINDINGS

Electoral System and Legal Framework

 

22. This provision (election 9 deputies of the Mazhilis by Assembly of People of Kazakhstan) continues to be at odds with Paragraph 7.2 of the 1990 OSCE Copenhagen Document, which maintains that all seats in at least one chamber of the national legislature be directly elected (page 4).

The CEC RK standpoint. Provision of the Assembly of People of Kazakhstan with the right to elect 9 deputies to the Mazhilis of Parliament of the Republic of Kazakhstan is one of the special measures to ensure the electoral rights of national minorities, is implementation of paragraph (clause) 31 of Copenhagen Document and other international instruments on national minorities representation (see: Article 18 of the Convention on the Standards for Democratic Elections, Electoral Rights and Freedoms in the CIS participating states, ratified by Kazakhstan on 7 June 2007, the 1999 OSCE Lund Recommendations of the Effective Participation of National Minorities in Public Life). And this is provided by Article 51 of the Constitution of the Republic of Kazakhstan.

Paragraph (clause) 31 of 1990 OSCE Document of Copenhagen Meeting states that participating states will adopt “special measures” for the purposes of ensuring to persons, belonging to national minorities, full equality with the other citizens in the exercise and enjoyment of human rights and freedoms”. The Republic of Kazakhstan considers that the proposed mechanism to provide national minorities with 9 deputy seats in the Mazhilis is a special measure that allows in the best way to exercise the rights of national minorities in the Republic, because the right of legislative initiative (including the issues of international relations) is implemented only in the Mazhilis of the Parliament.

Therefore, the election of 9 deputies of the Mazhilis of Parliament is consistent with paragraph (clause) 31 of the 1990 OSCE Document of the Copenhagen Meeting.

 

23. As the APK members can also cast votes in their capacity of regular voters, this arrangement is at odds with the principle of equality of the vote (footnote 9: The principle of equal suffrage is provided for by article 21(3) of the Universal Declaration of Human Rights (UDHR) and Article 25 (b) of the International Covenant on Civil and Political Rights (ICCPR). Article 3a) of the 2002 Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (CIS Convention), provides that, “each citizen has one vote or an equal number of votes to other citizens, and is entitled to exercise the right to vote in equality with other citizens.” Article 51.1 of the Constitution stipulates that the parliamentary elections shall be held on the basis of equal suffrage) (page 4).

The CEC RK standpoint. 98 deputies are elected under proportional representation system and 9 deputies are elected by the Assembly and represent in parliament a set of interests of all the country's ethnic groups.

Members of the Assembly of People of Kazakhstan vote for candidates to deputies of the Mazhilis of Parliament of the Republic of Kazakhstan for the political parties themselves and for certain candidates from the Assembly, that is, they voted for two different subjects.

According to clause 1 of Article 5 of the Constitutional Act on Elections voters participate in the election of deputies of the Mazhilis of Parliament to be elected based on party lists on an equal basis and each of them has one vote, respectively, per one ballot. This is the meaning of equal suffrage in the Republic of Kazakhstan and all over the democratic world.

 

24. Parties must obtain at least seven per cent of the total number of votes to participate in the allocation of seats which is among the highest thresholds in the OSCE region (footnote 10: Some OSCE/ODIHR EOM interlocutors expressed concern regarding the high threshold and its effect on pluralistic representation in parliament) (page 4).

The CEC RK standpoint. First of all, it should be noted that in this case all parties participating in the election are in the same position.

7% threshold is intended to cut off the smaller parties, which do not enjoy sufficient support from the population. This threshold also encourages the various parties to consolidate their resources, including by merging with movements similar in ideology. As a result, voters have no problems with the identification of very similar in terms of ideology parties and their voices have a more significant impact on the country's politics.

International experience shows that in many countries there are a variety of electoral thresholds. Indicator in 7% is not highest. For example, a number of other OSCE states have even higher electoral thresholds. For instance, Turkey has set a 10-percent threshold, while in Liechtenstein threshold is 8 percent. In Poland, Romania party coalitions have to overcome the 8 percent threshold. In Hungary, electoral blocs, consisting of two political parties, must overcome the 10 percent threshold, of three or more parties - 15 percent threshold.

As we can see, against the global background of barriers to political parties on their way to Parliament, Kazakhstan keeps an average, a balanced ratio.

 

25. Seats are allocated to candidates on the lists by the parties after the elections and the parties are not bound by any candidate list order. This limits the information available to voters with regard to the electoral contestants, contrary to good practice (footnote 11: Paragraph I.3.3.1.b.ii of the 2002 Council of Europe’s European Commission for Democracy through Law (Council of Europe Venice Commission) Code of Good Practice in Electoral Matters says that, "The public authorities have a number of positive obligations; inter alia, they must enable voters to know the lists and candidates standing for election, for example through appropriate posting.") (page 4).

The CEC RK standpoint. In Kazakhstan, the election of 98 deputies of the Mazhilis of Parliament is held based on the system of closed party lists. As it is known, closed lists are used in many developed democracies with proportional and mixed electoral systems, for example, in Norway, Sweden, Austria, Germany, and Israel. In these countries, voters can only vote for a political party as a whole and do not affect the order in which the names of the candidates on the party list are indicated, because there are the parties themselves determine which of candidates will receive the deputy mandate.

With regard to paragraph I.3.1.b.ii of the Code of Good Practice in Electoral Matters, adopted by the European Commission of the Council of Europe "For Democracy through Law" (Venice Commission) in 2002, that “the public authorities have a number of positive obligations; inter alia, they must: enable to know the lists and candidates standing for election, for example, through appropriate posting”, it should be noted that the Central Election Commission of the Republic of Kazakhstan clearly fulfilled this obligation: each voter of the country could be acquainted with the lists of candidates from all political parties and candidates from the Assembly of People of Kazakhstan in newspapers “Egemen Kazakhstan” and “Kazakhstanskaya Pravda” dated 4 February, 6 February, 9 February, 12-13 February, 3 March 2016, on the official web-site of the Central Election Commission (www.election.gov.kz) and in the parts of the country. Candidates from political parties held numerous meetings with the voters, thus giving the citizens of the country an opportunity to familiarize themselves with their activities.

Therefore, the system of drawing up the lists of candidates adopted in Kazakhstan does not differ from those generally accepted in the world democratic norms and does not limit the information on the candidates available to voters, and is not contrary to good practice.

 

26. Despite Kazakhstan’s commitment to uphold standards for democratic elections and participation in a number of major international and regional instruments (footnote 13: Including the 1966 ICCPR, 1979 Convention for Elimination of All Forms of Discrimination against Women, 2003 Convention against Corruption, 2006 Convention on the Rights of Persons with Disabilities, and the 2002 CIS Convention. Since 2012, Kazakhstan is also a member of the Venice Commission), restrictive provisions, including those related to prisoners’ voting rights, candidate eligibility and restrictions on freedoms of assembly and expression have not been lifted. Significant reform of the legal framework for elections is needed for it to meet OSCE commitments and other international obligations and standards for democratic elections (pages 4-5).

The CEC RK standpoint. Deprivation of active suffrage related to persons, who are recognized as legally incapable or serve the punishment by court’s decision, is not a violation of OSCE commitments by the Republic of Kazakhstan. For example, according to paragraph I.1.1.d.iv of the Code of Good Practice in Electoral Matters, adopted by the Venice Commission of the Council of Europe in 2002, the possibility of deprivation of the right to vote on the basis of a criminal conviction for a serious offense is not excluded. Article 18 of the Convention on the Standards for Democratic Elections, Electoral Rights and Freedoms in the CIS participating states of 2002 also does not consider as the discriminatory restriction of the right to vote in respect of citizens recognized by the court as legally incapable, and who kept in places of deprivation of freedom upon the court’s verdict.

There are no unnecessary restrictions of freedom of assembly and freedom of speech. The requirement to obtain a permit for rallies is a reasonable restriction, because the uncontrolled use of the rights by some people could lead to a massive violation of the rights of others. Such contradictions can and must be regulated by state authorities. The Constitution of the Republic of Kazakhstan dated 30 August 1995 (Articles 20 and 32), the Kazakhstan Law "On the order of organization and holding of peaceful assemblies, rallies, marches, pickets and demonstrations in the Republic of Kazakhstan" dated 17 March 1995 guarantee the freedom of speech and the freedom of assembly. On 28 September 1984 the United Nations Organization has adopted an international document - 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) on the admissibility of restrictions on granting rights to demonstrations and rallies by reasons of ensuring public order, public health and protection of the rights and freedoms of others. Kazakhstan law on rallies and demonstrations concerning issues of restrictions is based on the provisions of this international document.

Election Administration

 

27. By law, each party is entitled to one seat on a given commission; Maslikhats are not, however, bound by nominations of political parties when forming election commissions. Moreover, the law does not ensure that party representation in commissions must be upheld during turnover of commissioners (pages 5-6).

The CEC RK standpoint. According to the election legislation of our country political parties can propose candidates to election commissions, who can be members or non-members of this party (clause 3 of Article 10 of the Constitutional Act on Elections). This is due to the fact that many parties do not have their members and activists in a number of regions of the country.

Herewith, everyone has the right to decide himself to indicate or not to indicate his party membership and maslikhats at election of members of election commissions are not eligible to demand from them to provide documents confirming their membership in a political party. In this regard, the representation in the election commission of more than one member of any party is not excluded.

Also in accordance with clause 8 of Article 19 of the Constitutional Act on Elections, superior election commission temporarily appoints member of election commission to replace the retired member until the election of an election commission member by a body forming an election commission in the order established by Article 10 of the Constitutional Act on Elections.

Thus, the OSCE and PACE Mission incorrectly interprets this provision of the Constitutional Act on Elections, which provides for the re-presentation of all political parties in election commissions in case of replacement of members of this election commission after the temporary appointments by the superior election commission.

 

28. In some lower-level election commissions visited by the OSCE/ODIHR EOM, all members affiliated themselves with Nur Otan (footnote 18: The OSCE/ODIHR EOM was informed that in some instances commissioners were members of Nur Otan while being nominated by other organizations. This was the case in Mamlyut TEC in North Kazakhstan, Karakiya TEC, Ridder and Semey city TECs in East Kazakhstan) (page 6).

The CEC RK standpoint. Requests the CEC on this issue, mentioned by the OSCE and PACE Mission, were sent to the regions.

All members of Mamlyut district election commission in North-Kazakhstan oblast (letter of North-Kazakhstan oblast election commission No. 78 of 26 March 2016) are members of “Nur Otan” party, were nominated by different public associations; according to clause 3 of Article 10 of the Constitutional Act on Elections political parties may propose to the composition of election commissions the candidacies, who are members or not members of this political party, which is not violation of the existing election legislation.

In the cities of Ridder and Semey (letter of East-Kazakhstan oblast election commission No. 52 of 29 March 2016) there were changes in the composition of election commissions, in compliance with Articles 10 and 19 of the Constitutional Act on Elections all members of political parties, which ceased their activities – Party of Patriots of Kazakhstan and Communist Party of Kazakhstan, have been replaced.

 

29. In several other instances commissioners were unaware of the organization they represented (footnote 19: Astana city TEC, Astana city district TEC, Glubokoe and Oskemen TECs in East Kazakhstan, Ertis, Kashir and Pavlodar TECs in Pavlodar Oblast). (page 6)

The CEC RK standpoint. Requests of the CEC on this issue were sent to the regions, mentioned by the OSCE and PACE Mission.

According to information provided by election commissions of Astana city, East-Kazakhstan oblast and Pavlodar oblast it should be noted that in Astana city (letter No. 179 of 29 March 2016) information about membership of commissions’ members in public associations and the procedure of their election was provided to all observers in the sufficient content; in East-Kazakhstan oblast (letter No. 52 of 29 March 2016) due to termination of the activities of two political parties – Party of Patriots of Kazakhstan and Communist Party of Kazakhstan – replaced and newly elected members of election commissions could misunderstood the sense of raised questions on membership in organization; in Pavlodar oblast (letter No. 148 of 28 March 2016) badges with indication of the name of election commission, occupied position and organization, which they represent, were produced for all members of election commissions: information of the OSCE/ODIHR on this oblast is not correct.

 

30. The de facto over-representation of Nur Otan is at odds with the aim of the Election Law to ensure political party representation and raises concerns regarding the impartiality and integrity of commissions provided for by international standards (footnote 20: Paragraph 20 of the 1996 UN Human Rights Council (UNHRC) General Comment 25 to the ICCPR requires that “[a]n independent electoral 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.” Paragraph II.3.3.1.e of the 2002 Council of Europe Venice Commission’s Code of Good Practice in Electoral Matters recommends that “Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis.” Under Article 19.2(j) of the CIS Convention, the State parties undertook an obligation “to ensure creation of independent impartial election bodies, which organize the conduct of democratic, free, fair, genuine and periodic elections in accordance with laws and independent obligations of the state.”) (page 6).

The CEC RK standpoint. According to the electoral legislation of our country political parties can propose in the composition of election commissions the candidacies, who are members and not members of this particular party (clause 3 of Article 10 of the Constitutional Act on Elections). Meanwhile each person is eligible to decide himself to show or not to show his party membership and maslikhats, while electing members of election commissions, are not eligible to demand from them to submit documents, confirming their membership in a political party. In this regard, representation of more than one members of political party in the election commission is not excluded.

Among more than 93 thousand members or election commissions of the country there are: 12,539 representatives of “Nur Otan” party; 11,291 representatives of PDPP “Auyl”; 11,878 representatives of DPK “Ak Zhol”; 11,800 representatives of PP “Birlik”; 11,928 representatives of Communist People Party of Kazakhstan; 491 representatives of NSDP. The party NSDP is represented in election commissions to a less extent because it has nominated less (small) number of candidacies.

It should also be noted that according to clause 6 of Article 20 of the Constitutional Act on Elections the political parties, which do not have their representative in the composition of election commissions, are eligible to delegate to the corresponding election commission its representative with the right to advisory vote for the period of preparation and conduct of election campaign. Hence, the Kazakhstan’s law on elections fulfils the norms of clause 20 of the General Comment No. 25 to the International Covenant on Civil and Political Rights, adopted by the UN Human Rights Committee in 1996, paragraph II.3.3.1.e of the Code of Good Practice in Electoral Matters, adopted by the Venice Commission of the Council of Europe in 2002, sub-clause “k” of clause 2 of Article 19 of the CIS Convention of 2002.

The Central Election Commission received no complaints from political parties or citizens that representatives, formally nominated by other parties or associations, were in fact the members of "Nur Otan" party.

 

31. Some OSCE/ODIHR EOM interlocutors expressed their concern that the formation of election commissions lacked transparency (footnote 21: Commission members could not accurately describe the procedure for the appointment of election commissions and some of them could not state what criteria were used by the Maslikhats when electing commissioners or replacing them) (page 6).

The CEC RK standpoint. Requests of the CEC on this issue were sent to all regions of the Republic of Kazakhstan.

According to the regional election commissions: in Almaty city (letter No. 25 of 26 March 2016), in West-Kazakhstan oblast (letter No. 134 of 25 March 2016), in Atyrau oblast (letter No. 025 of 29 March 2016), in East-Kazakhstan oblast (letter No. 52 of 29 March 2016), in Aktobe oblast (letter No. 43 of 25 March 2016), in Kostanay oblast (letter No. 99 of 25 March 2016) and in other regions of the country formation of election commissions was held in compliance with the Constitutional Act on Elections: in 2014 during the formation of election commission the information on the facts of unjustified refusal to elect in the composition of election commissions from political parties has not been received.

Various training sessions on the procedures for the appointment of the commission members were held with members of election commissions of all levels. If the OSCE and PACE Mission has any specific facts in which regions the formation of election commissions did not comply with the Constitutional Act on Elections, we ask to provide them for further consideration and elimination of this critical observation.

 

32. In some cases, even though the NSDP submitted nominations for membership of RECs and TECs, they informed the OSCE/ODIHR EOM that none of its nominees were elected by the respective Maslikhats (footnote 22: Such cases were reported to the OSCE/ODIHR EOM in Aktobe, Almaty, Karaganda, Mangystau and Zhambyl. In several instances the Maslikhats claimed that NSDP did not submit sufficiently qualified candidates). This resulted in NSDP being largely under-represented countrywide including in executive positions in RECs and TECs (page 6).

The CEC RK standpoint. Requests the CEC on this issue were sent to the regions, mentioned by the OSCE and PACE Mission.

According to information submitted by maslikhats of Aktobe, Almaty, Karagandy, Mangistau and Zhambyl oblasts it should be noted that in Zhambyl oblast (letter No. 01-139 of 25 March 2016) the NSDP nominated only one candidacy and its was removed at his own request; in Mangistau oblast (letter No. 01-25-122 of 25 March 2016) no candidacies from NSDP were nominated; in Karaganda oblast (letter No. 1-1/2-141 of 25 March 2016) due to time constraints, according to clause 8 of Article 19 of the Constitutional Act on Elections, the oblast election commission has appointed member of election commission to replace the retired one prior to election of member of election commission by a body, which forms the election commission; in Almaty oblast (letter No. 17-17-117 of 28 March 2016) NSDP nominated 109 candidacies, of them 108 have been elected as members of election commissions; in Aktobe oblast (letter No. 06-01-02/184 of 29 March 2016) only one candidacy from NSDP was nominated, then at the maslikhats session, which was attended by 26 deputies, based on the results of voting this candidacy has received only 2 votes and did not pass to election commission.

At the same time it should be noted that according to clause 6 of Article 20 of the Constitutional Act on Elections the political parties not having representative in the composition of election commission during preparation and conduct of election campaign are eligible to delegate to the corresponding election commission its representative with the right of advisory vote.

 

33. The OSCE/ODIHR EOM was informed of up to nine cases in which complaints were filed about the composition of lower-level election commissions. Regrettably, further information on the complaints could not be provided by the CEC or the General Prosecutor's office (footnote 24: The CEC and Prosecutor's offices registered complaints on the composition of election commissions as matters related to the Maslikhats elections, and therefore they were not shared with the OSCE/ODIHR EOM) (page 6).

The CEC RK standpoint. Information on complaints at election to maslikhats was transferred by the head of the legal department of the CEC RK office E.G. Kholmetskaya to Legal Analyst of the OSCE/ODIHR EOM Ms. M. Fitzgerald by e-mail on 14 March 2016. And information concerning complaints received during election of deputies of the Mazhilis of Parliament of the Republic of Kazakhstan has been also handed over at the meeting with Legal Analyst of OSCE/ODIHR EOM Ms. M. Fitzgerald. And it was done, despite the fact that the observation of the election process to maslikhats was not within the OSCE competence.

 

34. In over 20 per cent of election commissions visited by the OSCE/ODIHR EOM, the leadership of the commissions were also supervisors of commission members in their regular jobs (footnote 25: Such cases were observed at REC, TEC and PEC levels in Almaty city, Aktobe, Akmola, Atyrau, East Kazakhstan, Kostanai and Kyzylorda Oblasts. In these cases election commissioners held administrative positions either in local executive or representative bodies). This could affect the independence of election commissioners (page 6).

The CEC RK standpoint. Requests of the CEC on this issue were sent to the regions, mentioned by the OSCE and PACE Mission – Almaty city, Aktobe, Atyrau, East-Kazakhstan, Kostanay and Kyzylorda oblasts.

According to information of oblasts election commissions: in Almaty city (letter No 25 of 26 March 2016), in East-Kazakhstan oblast (letter No. 52 of 29 March 2016), in Aktobe oblast (letter No. 43 of 25 March 2016), in Kostanay oblast (letter No. 99 of 25 March 2016) the clause 9 of Article 19 of the Constitutional Act on Elections that election commission must not be composed of employees of one organization was fully fulfilled. Members of election commissions at the main place of work are not employees of the same organization, and therefore, are not subordinate to the Chairman of the Electoral Commission.

In Kyzylorda oblast (letter No. 01-11/66/214 of 26 March 2016) chairpersons in 202 election commissions (40 %) of 506 election commissions of the oblast are supervisors of three and more commissions’ members at their permanent places of work. In the election of the chairman of the election commission, the commissions’ members, despite the status and subordination, are guided by the presence of experience to hold election, the knowledge of election legislation and skills to work with the population.

At the same time there is no restriction in the election legislation of Kazakhstan that members of election commissions occupy administrative positions in local executive and representative bodies.

Candidate Registration

 

35. The formation of electoral blocs and self-nominated independent candidacies are not permitted (footnote 29: The CEC received two requests from citizens wishing to be registered as independent candidates). These restrictions on candidacy rights are contrary to paragraph 7.5 of the 1990 OSCE Copenhagen Document, other international standards and good practice (footnote 30: Paragraph 7.5 of the 1990 OSCE Copenhagen Document provides that participating States will respect the right of citizens to seek political or public office without discrimination. Paragraph I.1.1.1.d.iii. of the Council of Europe Venice Commission’s Code of Good Practice in Electoral Matters states that the proportionality principle must be observed when depriving an individual of the right to be elected. See also paragraph 15 of General Comment No.25 to the ICCPR which states that “any restrictions on the right to stand for election…must be justifiable on objective and reasonable criteria”. Article 3.4 of the 2002 CIS Convention states that “every citizen should have equal legal possibilities to propose him/herself as a candidate in elections.”) (page 7).

The CEC RK standpoint. Paragraph (clause) 7.5 of the OSCE Copenhagen Document enshrines the right of citizen to seek political or public office, individually or as representatives of political parties.

This document does not say that citizens can seek political or public office both individually and as representatives of political parties, but says that they can be elected individually or as representatives of political parties. Republic of Kazakhstan decided to choose the right of citizens to be elected as representatives of political parties. The Constitution of Kazakhstan and election legislation of the country provide for the right of political parties as well as Assembly of People of Kazakhstan of all levels to nominate candidates to deputies of the Mazhilis of Parliament. Self-nomination is provided for all other elective offices – the President, deputies of the Senate of Parliament, and maslikhats of the Republic of Kazakhstan. Therefore, the current practice in the Republic of Kazakhstan is not contrary to the provisions of paragraph (clause) 7.5 of the OSCE Copenhagen Document as it does not say that only independent candidates must be nominated to the Parliament. On 29 January 2016 the CEC RK has received application of citizens V.A. Bezrukova and on 4 February – of A. Mukibekov, who wanted to be nominated as candidates to deputies of the Mazhilis of Parliament. Explanation of the norms of legislation was given to applicants.

In the mentioned paragraph 15 of General Comment No. 25, adopted by the UN Human Rights Committee in 1996, the favorable for the OSCE and PACE Mission phrases are cited. Meanwhile, the UN Human Rights Committee in a sentence marked by the OSCE and PACE Mission with three dots it is said only about one restriction: “such as minimum age”. In terms of implementation of this requirement the legislation and practice in Kazakhstan is in full order: all candidates to deputies of the Mazhilis and maslikhats were of age above 25 and 20 years respectively, as it is prescribed in Articles 51 and 86 of the Constitution of the Republic of Kazakhstan. None of 27 paragraphs of the General Comment No. 25 the UN Human Rights Committee does not say that proportional electoral system (which was introduced in Kazakhstan in 2007 at election to the Mazhilis of Parliament) is a restriction on the right of citizen to stand for election.

With regard to the question of formation of electoral blocs it should be noted that in Kazakhstan electoral blocs were formed at parliamentary election in 2004, when election was held under a mixed electoral system. However, the transition to the proportional electoral system at the election 98 deputies of Mazhilis of Parliament in 2007 has led to the exclusion of the provision on electoral blocs, since it would put the party, which are not involved in the blocks, in unequal conditions during election.

 

36. The NSDP informed the OSCE/ODIHR EOM that they did not nominate more candidates as they could not afford the required deposit per candidate (page 8).

The CEC RK standpoint. Election deposit of party for each nominated candidate is 15 times of minimum wage, that is KZT 342 885. This size is roughly equivalent to the Recommendations of the Committee of Ministers of the Council of Europe “On common rules against corruption in funding political parties and electoral campaigns” of 8 April 2003.

According to the Committee on Statistics of the Ministry for National Economy of the Republic of Kazakhstan in February 2016 the average monthly wage in Kazakhstan was KZT 127 thousand. The size of the election deposit was 2.7 of the average monthly wage of an ordinary Kazakhstani. And this amount is quite reachable for common citizens and parties in the country.

Campaign

 

37. Although campaign activities intensified somewhat in the last two weeks prior to elections, overall the campaign was low key. Many OSCE/ODIHR EOM interlocutors noted that the campaign for local elections was more dynamic. While the participation of six parties appeared to provide political variety and choice, the parties’ campaign platforms and rhetoric were complementary to and aligned with the president’s long-term strategies and refrained from proposing political alternatives (footnote 33: 100 Concrete Steps to Implement Five Institutional Reforms and Nurly Zhol (Bright Path)) (page 8).

The CEC RK standpoint. It should be understood that “100 Concrete Steps to Implement Five Institutional Reforms” and “Nurly Zhol (Bright Path)” cover all spheres of life: from social and economic to small and medium business and banking sector. These programs are aimed at long-term development of Kazakhstan. Therefore, it is logical that certain campaign platforms and the nature of the statements of parties complemented and were consistent with long-term strategies of the President, which represented the interests of all the people in general.

At the same time, for example, the main goal of election platform of the party "Aul" was the revival of national and cultural origins of Kazakhstan, imposing the luxuries tax as well as setting national medical services quality standards for rural areas, establishment of a "family wage" to one of the spouses, busy with raising three or more children, at a rate not lower than the social consumption standard.

Unlike platforms of competing parties the campaign platform CPPK drew attention to the fact that the current economic crisis in Kazakhstan was tied to global financial collapse, in which "the rich (Western) countries become richer, while the poor drown in poverty." CPPK program brought the attention of voters that such a situation is a destiny of capitalist system of economy focused on the expansion of the global consumer class (otherwise, the increase in sales markets) and thus laid the basis for crises of overproduction of consumer goods. In this context it made proposals for the attainment of independence from the global market and its permanent fluctuations by developing its own industry based on raw materials produced in the country, accelerated development of the food industry and agriculture. Besides, it is necessary, to opinion of CPPK, to move away from the imposed Western values in the cultural sphere.

NSDP in its election platform focused on positioning itself as the "opposition party". The essence of the political and economic alternatives of this party was that it offered a two-fold increase of living wage, maximum simplification of procedures for admission of repatriates, the release of small and medium businesses from taxes for a period of 5 years, the reduction of at least twice of the number of public servants.

As we see, different parties offered different political and economic alternatives that were not always aligned with the president’s long-term strategies.

 

38. (The legal framework) continues to contain restrictive provisions, such as the obligation to ask for permission to hold an event rather than provide a notification, contrary to international standards and good practice, and despite previous OSCE/ODIHR recommendations (footnote 35: The Law on Peaceful Assemblies requires organizers to submit a request to hold a public event, including information about the nature and organizers of the event, to the relevant local authorities 10 days in advance. 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 UNHRC General Comment No. 25 states: “Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected.” See also statement by the UN Special Rapporteur from 27 January 2015 on the right to freedom of peaceful assembly in Kazakhstan) (page 8).

The CEC RK standpoint. Restrictions on peaceful assembly are proportionate and fully comply with the requirements of an international instrument of the United Nations - the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (UN document E/CN.4/1985/4) of 28 September 1984. Restrictions are grounded in nature and aimed at ensuring public order, public health and protection of the rights and freedoms of others.

 

39. The OSCE/ODIHR observed 23 campaign events. During the campaign period the OSCE/ODIHR EOM learned of four requests to hold outdoor campaign events being rejected by local authorities in Astana (footnote 36: The Astana local authorities rejected the requests of Birlik, NSDP, CPPK and Auyl to hold outdoor campaign events in the city of Astana. The local authorities referred to the provision in the law on peaceful gatherings, that public gatherings cannot obstruct traffic or block pedestrian walkways. In two cases, Birlik and CPPK, the local authorities also found that the applications did not provide sufficient information about the events) (page 8).

The CEC RK standpoint. According to information provided by akimat (local authority) of Astana city (letter No. 104-12/3845 of 31 March 2016) during election campaign the akimat of Astana city has received four applications to hold marches from Astana branch offices of PDPP “Auyl”, “Birlik” party, NSDP and city committee of CPPK.

According to the content of applications from branches of party PDPP "Auyl", party "Birlik" and city committee of CPPK the estimated quantity of participants of each march ranged from 500 to 1,000 people. However, the applicants pointed to the central city streets (avenues Saryarka, Abay Republic, Zhenis; streets Seifullin, Zheltoksan, Beybіtshіlіk), where there is the big traffic load during weekdays.

Having considered these applications within the requirements of Article 5 of the Law of 17 March 1995 "On the procedure of organization and holding of peaceful assemblies, rallies, marches, pickets and demonstrations in the Republic of Kazakhstan" that the organizers and participants of the public events are prohibited to impede the traffic of vehicles and pedestrians, the akimat of Astana city had decided to refuse to hold marches. At the same time the Head of State Institution "Department of Internal Policy of Astana city" E.E. Kanalimov with participation of representatives of the Department of Internal Affairs of Astana city and the applicants from political parties – M. Aubakirov, T. Kuanyshev, M. Oralov and A. Rakhimzhanov organized a meeting, during which explanations were given regarding the refusal to hold marches.

 

40. In paragraph 5.4 of the 1990 OSCE Copenhagen Document, participating States committed to ensuring a “clear separation between the State and political parties.” The dominant position of the ruling party at all levels of government and administration for many years now has effectively blurred this distinction. The ruling party benefited from the dual role and position of its chairperson (footnote 37: The President, acting in his official capacity, on several occasions publicly endorsed Nur Otan and its achievements and called upon voters to vote for the party. A number of Nur Otan party offices are located in the same buildings as state and local government institutions) (pages 8-9).

The CEC RK standpoint. In terms of ensuring a clear separation between State and political parties the Republic of Kazakhstan fulfills its obligations under Copenhagen Document in full. This is confirmed by the fact that in the main law of the country - the Constitution of the Republic of Kazakhstan in clause 2 of Article 5 stipulates: "It is not allowed the illegal interference of the state in the affairs of public associations and of public associations in the affairs of state." In other words, political parties are the same public associations, in which affairs the state has no right to interfere.

In this context, it is necessary to distinguish between a political campaign and the daily work of state bodies. In some cases the President called upon to vote for the party "Nur Otan" as the Chairman of this party. Besides, the expenses for holding events were paid from the election fund of “Nur Otan” party, as it is required by law.

At the same time, the statement of the OSCE/ODIHR Observers’ Mission that a number of Nur Otan party offices are located in the buildings of state and local government institutions must be justified by facts, as according to clause 1 of Article 5 of the Constitution of the Republic of Kazakhstan “it is not allowed to form organizations of political parties in the state bodies”. In this regard, we ask the OSCE/ODIHR Mission to provide information and evidence of location of Nur Otan party offices in the buildings of state bodies.

Campaign Finance

 

41. The lack of information on donors and the use of campaign funds limited voters’ ability to make an informed choice (footnote 39: See the first and second overview published by the CEC that provide only the total amounts of funds collected per party. Article 12.5 of the 2002 CIS Convention states that political parties shall submit information on their donors and the use of campaign funds and the electoral bodies shall publish this information). The Election Law stipulates that the overview includes the total amount received by each party and the sources of those funds but does not require the CEC to publish information on campaign donors or the use of funds thereby limiting the transparency of campaign finances (page 9).

The CEC RK standpoint. This critical observation is not clear for the CEC RK, because the OSCE documents do not regulate the procedure for ensuring the transparency of campaign financing. However, at this election reports of election funds of political parties have been published twice.

Clause 5 of Article 12 of the Convention on Standards for Democratic Elections, Electoral Rights and Freedoms in the CIS participating state of 7 October 2002 states that candidates, political parties (coalitions), taking part in election, must provide with the established by law periodicity to election management bodies and (or) other bodies, listed in the law, data and reports on their spending from these funds to finance their election campaign. Election management bodies ensure publication of mentioned data and reports in mass media and telecommunication networks, listed in the law.

Proof of the fact that the CEC of Republic of Kazakhstan acted in full compliance with clause 5 of Article 12 of the Convention for Democratic Standards, Electoral Rights and Freedoms in the CIS participating states of 7 October 2002 is the direct fact of openness and transparency of the process. Data and reports of political parties on their spending from election funds spent on financing their election campaigns were submitted to the CEC of the Republic of Kazakhstan and published in media (see: newspapers “Egemen Kazakhstan”, “Kazakhstanskaya Pravda” of 5 April 2016).

However, information about the sponsors may not be disclosed without their consent. This right of a sponsor as a human right cannot be violated by anyone.

As we see, all information on the data, spent by the parties on advertising from their election funds of political parties, was published.

Media

 

42. The media environment in Kazakhstan has over recent years been characterized by a lack of independent sources and a restrictive legislative framework that have profoundly challenged freedom of expression. The OSCE Representative for Freedom of the Media (RFoM) has on several occasions expressed concerns about media developments in the country, including closures of media outlets, disproportionate and excessive penalties for administrative violations, as well as prosecutions of journalists and independent voices, all of which have further limited pluralism of opinion (footnote 40: See OSCE Representative on Freedom of the Media Regular Report to the OSCE Permanent Council from 10 March 2016; and statements from 26 January 2016, 26 December 2015, 27 October 2015 and 25 September 2015) (pages 9-10).

The CEC RK standpoint. In the overwhelming majority of developed countries of the world, including the OSCE participating states, fixed norms of different kinds of sanctions (from fines to imprisonment) at the legislative level are established, aimed at protecting the rights of citizens against unreasonable accusations, libel and insults.

These mechanisms cannot be considered as measures to restrict freedom of speech or activities of journalists and editors with critical attitudes towards the authorities. Responsibility comes not simply for unfounded accusations, insults, but only in cases where it creates the danger of public disorder or substantial harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state.

Regarding the statements of the OSCE Representative on Freedom of the Media Dunja Mijatović, it should be noted that all mentioned by her cases of detentions of journalists were not related to the election campaign of 20 March 2016. A number of journalists (R. Balgin, G. Baydalinova, Y. Kozlova) have been detained in connection with the publication of 54 ordered articles, containing defamation in respect of Kazkommertsbank. R. Balgin and M. Auezov confessed their guilty and were released from custody. Y. Kozlova was acquitted by the court. The detention of G. Baydalinova has been extended for up to 23 April 2016. The investigation on the case of corruption offenses against S. and A. Mataevs, B. Bersebaev, B. Arpabaev is not completed. The fact that a number of journalists have been released from custody, and the opposition-minded journalist Y. Kozlova was discharged, is one of the evidence that the Kazakhstan’s judicial authorities administer justice in compliance with the law: such court rulings did not lead to the "restriction", but to the expansion of pluralism of opinion.

 

43. The state exercises its influence over media through a widespread system of public tenders. Thus, despite a large number of outlets, the media do not offer diverse viewpoints, in particular in the realm of television that serves as the main source of information, especially in rural areas. Access to the Internet, including to social networks that offer alternative political opinions, is growing, mainly amongst the younger and urban population. However, numerous sanctions contained in the legal framework, including blocking of access to websites, can lead to self-censorship and endanger political discourse in the online domain (footnote 41: In recent months, several trials took place and bloggers and journalists were convicted on charges of ‘incitement of interethnic discord’ or propagating ‘separatism’ online and in social media) (page 10).

The CEC RK standpoint. As of 1 January 2016, 2,749 media have been registered in Kazakhstan, including 2,062 private or 75% of all media. According to the Public Foundation “Legal Media Center” public funding media in recent years is constantly decreasing: from KZT 48 billion in 2014 to KZT 43 billion in 2015, and in 2016 and in 2017 it will amount to KZT 41 billion (see: http://lmc.kz/). At the same time the media advertising market in Kazakhstan is the third largest in the former Soviet Union after Russia and Ukraine. Therefore, the public tenders cannot be considered as the only source of funding for the media. Furthermore, according to the agency GRP.kz, despite the decline of media market in 2015, the Internet segment grew by 25% in Kazakhstan (see: http://grp.kz/tv-ad-market-kazakhstan-2015/).

According to the Office of the Prosecutor General of the Republic of Kazakhstan (letter No. 2-010732-16-19510 of 26 March 2016) deliberate actions aimed at inciting national, racial or religious enmity and hatred, if these acts are committed publicly or through the media, or information and communication networks, as well as by manufacturing, spreading literature and other media, promoting social enmity or discord, entail criminal responsibility in accordance with Article 174 of the Criminal Code. At the same time, the presence of signs of hostility or discord are defined by experts of a narrow specialization (philologists, psychologists, linguists and others), and accusation is brought only with their conclusions. As we see, the criticism in the media cannot be attributed to offenses arising from the content of Article 174 of the Criminal Code and the application of this Article may not lead to self-censorship and endanger the political discourse in the online domains.

It should also be noted that the websites ratel.kz, zonakz.net, nakanune.kz mentioned in the statement of the OSCE Representative on Freedom of the Media Dunja Mijatović were unblocked on 2 February 2016 and were available to users during the period of election campaigning at the recent parliamentary election. Such facts, on the contrary, contributed to the expansion of political discourse (dispute) in the online domains.

 

44. The legal framework for media contains a number of restrictive provisions. The presence of numerous sanctions in the law stifles public debate and suppresses alternative viewpoints. Contrary to the OSCE/ODIHR recommendations and calls from the OSCE RFoM, the Criminal Code retains defamation and insult. The Code also contains a provision on incitement of social, national and religious discord and on spreading false information, with a penalty of up to 20 and 10 years of imprisonment, respectively. These restrictions, combined with frequently used provisions on defamation under the Civil Code that can carry substantial fines, result in a legal framework that induces self-censorship (footnote 42: In 2015, as a potentially preventive measure, the Tax Code was amended to oblige a complainant to pay a submission fee based on the amount to be claimed as compensation in civil defamation cases) (page 10).

The CEC RK standpoint. None of the international instruments provides for the decriminalization of the spread of false information discrediting the honor and dignity of another person or undermining his/her reputation. In most developed countries of the world, including the OSCE participating states, fixed norms of different kinds of sanctions at the legislative level are established, aimed at protecting the rights of citizens against unreasonable accusations, libel and insults.

Libel in the criminal legislation of Kazakhstan classified as private prosecution cases considered by the court by the complaint of the victim, who provided evidence. At the same time, dismissal of this category of criminal cases is permitted because of the reconciliation of the parties. It should be emphasized that footnotes of Articles 373, 375, 376, 378 of the Criminal Code of the Republic of Kazakhstan provide that the public statements containing criticism of the conducted by the President of the Republic of Kazakhstan policies, activities of the deputy of Parliament of the Republic of Kazakhstan, activities of the representative of public authority do not entail criminal liability. And this is a direct legal guarantee of freedom of speech, freedom of expression.

Incitement of social, national, tribal, racial, class or religious hatred refers to extremist crimes (see: sub-clause 39 of Article 3 of the Criminal Code). The maximum penalty of 20 years for incitement of hatred can be applied in exceptional cases, when these acts were committed intentionally by criminal group and entailed severe consequences (see: Article 174 of the Criminal Code). Thus, the criminal prosecution for intentional incitement to hatred is not directed at suppressing the freedom of the media, but at the fight against hate speech, encouraging the population to riot and violence. It should be noted that the fight against hate speech is one of the most important activities of the OSCE Representative on Freedom of the Media (see: http://www.osce.org/fom/106289). Therefore, we do not understand the position on this issue in terms of restrictions of media activities, especially as Article 174 of the Criminal Code of the Republic of Kazakhstan is implementation of the provisions of the OSCE Declaration on Aggressive Nationalism, Racism, Chauvinism, Xenophobia and Anti-Semitism, adopted at the 4th meeting of the OSCE Council of Ministers on 30 November - 1 December 1993.

Since May 2014 criminal liability for the spreading of knowingly false information, which creates the danger of public disorder or substantial damage to the rights and legitimate interests of citizens or organizations, legally protected interests of society and the state has been established (see: Article 274 of the Criminal Code). However, the position that this new component of crime is aimed at strengthening control over the media activity is incorrect, because the subjects of the crime may be any person who spread knowingly false information. In addition, the objective part of this crime also does not provide for the possibility of making it only by the media, but by any other way of spreading. The maximum penalty for the crime of 10 years is also applicable in the exceptional cases where intentional actions have caused large-scale damage or other serious consequences, committed by a criminal group or in a state of emergency, in a battle conditions, in wartime, during a public speaking. In other words, Article 274 of the Criminal Code is also aimed at combating hate speech, rather than to the suppression of freedom of speech. It fully complies with the International Covenant on Civil and Political Rights, Article 19 of which imposes a special responsibility on the right to freedom of expression, which may be subject to certain restrictions for the respect of the rights, the reputation of others, protection of public security, public order.

In 2015, sub-clauses 15 and 16 of Article 535 of the Code of the Republic of Kazakhstan of 10 December 2008 “On taxes and other obligatory payments to the budget (Tax Code)” provided for payment of fee of 1% of the amount of the claim of physical persons for the recovery of compensation for moral damage caused by the spread of information discrediting the honor, dignity and business reputation, as well as of 3% of the amount of the claim of legal entities for damages caused by the spread of information discrediting business reputation. These fees were established in order to limit demands on excessive amounts for compensation for claims for defamation and other offenses and crimes. Thus, the Kazakh legislator has implemented the recommendation No. 8 of the Final Report of the OSCE/ODIHR observation mission at early parliamentary election in Kazakhstan, held on 15 January 2012, to amend the civil defamation law to ensure that defamation cases are settled fairly and proportionately to the offense committed.

 

45. Under the CEC’s narrow interpretation of the law, any airtime given to a contesting party outside the news format is considered to be campaigning and should be paid for from the party’s campaign fund. Thus, while paid political advertisement was used by the contestants, journalistic coverage of the campaign was limited to newscasts and articles. An in-depth, comprehensive analysis that would provide voters with a meaningful opportunity to learn about parties and concrete policy proposals was largely absent. The law provides for debates to be organized by the CEC among political parties which nominated candidates. The CEC organized one pre-recorded televised debate, aired by Khabar TV on 16 March, with the participation of all contesting parties. The formalistic format of the debate did not offer an opportunity for interactive exchange of views (pages 10-11).

The CEC RK standpoint. Within the period from 20 February to 18 March 2016, 8,389 news materials about the campaign of political parties have been fixed in the media. Volumes of coverage for all six political parties were equal. Publication and airing of 3,515 campaign materials, including on television – 2,272, radio – 1,087, in the newspapers – 136, internet publications – 20 were paid by political parties from their election funds.

Rules for holding political debates, which was brought to the attention of the media, were approved by the Resolution of the CEC RK No. 27/122 of 14 March 2016. On 16 March 2016 the CEC RK has organized political debate of parties. They were attended by representatives of all six political parties. The debates were held in three rounds. The first two rounds consisted of two sub-rounds.

The debate participants spoke on the following topics: "The new reality of the global economy: problems and prospects" and exchanged with questions and answers on the given subject, made s speech on the topic: "Infrastructure, Transportation, Logistics: modernization in modern conditions", in addition representatives of political parties were given the opportunity to make an appeal to voters.

As we see, during the televised political debates representatives of parties within the established time limits outlined the pre-election platform of their party, appealed to voters with a call to take part in the election on 20 March 2016, expressed their vision of problems, offered their approaches, ways and attempts to solve the existing problems in the country in a sufficiently interactive mode.

It should be noted that participation in the debate is voluntary. In addition, legislation does not forbid holding such a debate by political parties in other formats. It means that no one has restricted the right of parties to agree with the media and political parties, to organize and conduct a debate without any restrictions.

 

46. In respect to state-funded newspapers: footnote 47: Egemen Kazakhstana dedicated 26 per cent of its political news coverage to the president, 11 per cent to Nur Otan, 6 per cent to each Ayul and Birlik, and 5 per cent to each Ak Zhol, CPPK and NSDP. Kazakhstanskaya Pravda dedicated 18 per cent of its political news coverage to the president, 9 per cent to Nur Otan, 8 per cent to each Ak Zhol, Ayul and CPPK, 7 per cent to Birlik, and 6 per cent to NSDP (page 11).

The CEC RK standpoint. Talking about the coverage of information on the President in newspapers "Egemen Kazakhstan" and "Kazakhstanskaya Pravda" as a factor of accenting the coverage of the President in the election campaign in political news is incorrect. Activities related to the performance of public functions, as well as news information related to the participation of the President, cannot be regarded as campaigning. But media cannot cover only information on elections. Media should simultaneously cover information about citizens' life, as well as the news of political, economic and social nature. Consequently, the statement on the allocation of political news coverage to the President does not correspond to the correct interpretation.

Calculations made by the OSCE and PACE Mission in relation to newspapers are unreliable. According to official statistics provided by the Committee for Communications, Information and Informatization of the Ministry of Investment and Development of the Republic of Kazakhstan, the newspaper "Egemen Kazakhstan" has released by 26 editorial materials on the activities of the party "Aul" and "Birlik" and by 27 editorial materials on political parties "Nur Otan, NSDP, CPPK and "Ak Zhol". The newspaper "Kazakhstanskaya Pravda" has released by 22-23 editorial materials for each of the 6 political parties. As we see, the political news coverage in these newspapers in reality is contrary to the statistics of the OSCE and PACE Mission, and the coverage of political parties in the media was almost equal.

 

47. In comparison to the coverage of other contestants, state-funded channels rarely gave the NSDP leader an opportunity to speak, often depicted speakers from a distance and generally focused on technical aspects of the party’s campaign, such as itineraries of meetings and the number of leaflets distributed, rather than on its platform (footnote 48: In addition, on 9 March the NSDP requested Khabar TV to broadcast its paid spot. However, the channel asked to edit the language of the spot and aired it from 15 March, during the prime time. The spot was aired six days after the initial request, even though the media’s internal regulation provides for a four day advance notice). On 4 March, the NSDP complained to the CEC about the manner in which three state-funded broadcasters covered its campaign events. The party claimed that the channels intended to downplay the NSDP and its candidates. In a verbal response on 5 March the CEC clarified that the coverage of the channels complies with the legal requirements. OSCE/ODIHR EOM monitoring findings nevertheless indicate that the coverage on state-funded channels improved as of 10 March for a few days (page 11)

The CEC RK standpoint. The CEC RK by virtue of its status has no right to interfere in the internal affairs of TV channels. In accordance with clause 6 of Article 1 of the Law of the Republic of Kazakhstan "On mass media", the competent body, carrying out state regulation in the field of the media is the Committee for Information, Communications and Informatization of the Ministry of Investment and Development of the Republic of Kazakhstan.

However, the CEC of the Republic of Kazakhstan in order to ensure the equal rights of the parties in the election race, on 12 March 2016 sent a letter to the JSC "Agency "Khabar" (letter No. ОСК-Ю/130/3Т). The answer was received on 14 March 2016 (letter No. 02-08/574), which reported that a prerequisite for the airing of a video spot is to provide a text version of the content. Then, after the party NSDP gave the text version of the video spot, the members of the working group of "Agency "Khabar" identified various differences of text on paper and video text. Furthermore, both texts contained grammatical, spelling error and technical inconsistencies. After providing by the party of identical text and video spot in both paper and electronic formats and making the necessary technical corrections these materials were aired live on "Khabar" TV channel. As we see, the deliberate obstacles for NSDP materials were not caused.

In addition, on 4 March 2016 the CEC of the Republic of Kazakhstan received appeal from the NSDP party. The NSDP party expressed its dissatisfaction with regard to the fact that the media apply different tricks aimed at minimizing the recognition of NSDP and its candidates. On 5 March 2016 the Chairman of the CEC RK K.T. Turgankulov gave a verbal answer to the complaint of the NSDP party, to the head of the NSDP election headquarters, a member of the NSDP Presidium Aydar Alibaev. The CEC of the Republic of Kazakhstan after receipt of complaint immediately watched materials aired by public broadcast channels and did not reveal any fact proving or confirming the statement of the representatives of the NSDP party, reflected in a letter addressed to the CEC of the Republic of Kazakhstan.

 

48. OSCE/ODIHR EOM also learned about the media plan that was prepared by the Media Committee and is distributed to major media on regular basis to inform them of important political events (footnote 49: The OSCE/ODIHR EOM was informed by some media outlets that the media plan serves as a guideline and framework for the coverage of political events). This practice raises doubts about the independence of editorial policy of state-funded media (page 11).

The CEC RK standpoint. Media plan was served as a guide and schedule for the coverage of the main political events during election campaign. Saying that the independence of editorial policy of state-funded media raised doubts is incorrect. The media plan could not affect the editorial policy, since the media plan was not a legally binding document.

Complaints and Appeals

 

49. The law, however, limits the right to appeal the election results to certain senior officials, leaving the contestants without the opportunity to challenge the validity of the results, contrary to international standards and good practice (footnote 51: The right to appeal final results is granted to the president, one fifth of the members of parliament, speakers of both houses of parliament, and the prime minister. The UDHR states that "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law,” (Article 8). See also Paragraph II.3.3.3.f of the 2002 Venice Commission’s Code of Good Practice in Electoral Matters which says 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 12).

The CEC RK standpoint. Violation of the rights of one or several voters by itself, recorded in the manner prescribed by the law, cannot lead to provision of the right to appeal the final election results.

Strong reasons are needed to take a decision on the appeal of the final election results. Serious violations of the law, which do not allow to treat with confidence to the obtained election results, must be established.

Therefore, the right to appeal the election results is a very serious political and legal mean, which is used only in extreme cases and in cases when there were really serious violations of the election legislation. Therefore, this right is granted only to representatives of the highest authorities, that is the President, who is the guarantor of the unity of the government, one fifth of the deputies of the Parliament of the Republic of Kazakhstan, who are elected by the people, the speakers of both houses of Parliament and the Prime Minister as the head of the executive branch.

The ideas of the provisions of Code of Good Practice in Electoral Matters, adopted by the Venice Commission of the Council of Europe in 2002, on appeal of the election results in the corresponding constituency, reflected in Article 49 of the Kazakhstan’s Constitutional Act on Elections, which says: “courts and public prosecutor bodies are obliged to accept applications from the members of election commissions, citizens”, “concerning the issues of conducting the voting, including the issues of on infringements of election legislation that have been received during the preparation and conduct of elections, and shall consider them within five days, while the applications received less than five days prior to the voting and on the Election Day shall be considered immediately”. Moreover, in clause 1 of Article 95 of the same Act it is written that “the Central Election Commission by the request of the corresponding territorial election commission or citizens shall be eligible to invalidate the election of Mazhilis deputies in the corresponding administrative-territorial unit, if the Constitutional Act on Election was violated during the election or vote count or tabulation of election results, which do not allow to accurately determine the results of expression of the citizens’ will. In this case, the Central Election Commission shall announce rerun of a vote in the corresponding administrative-territorial unit”. As we see, the right of citizens of the Republic of Kazakhstan to appeal the election results in any administrative-territorial unit of the country is reflected in the Constitutional Act on Elections and this right is not violated.

Election Day

 

50. The election day was efficiently organized, but serious procedural errors and serious irregularities were observed during voting, counting and tabulation. One third of PECs (while opening polling stations), however, did not count and announce the number of ballots received (page 13).

The CEC RK standpoint. International observers of the CIS, SCO, CCTS, TurkPA, OIC Missions and other international organizations and foreign countries noted that the process of voting, counting and tabulation of results at election of deputies of the Mazhilis of Parliament of the Republic of Kazakhstan was held in compliance with the national election legislation, freely and democratically. The CEC RK has prepared a training film in detail covering all electoral procedures, which was delivered to each precinct election commission. Election commissions strictly followed the instructions of the CEC RK.

According to the opinions and statements of many other both international and local observers, as well as representatives of the mass media, all persons who were present at the polling stations were given a real opportunity to express their will.

The letters of the oblast election commissions denies the facts that there were serious procedural errors and irregularities. For example, Kyzylorda oblast election commission reported that while opening polling stations all precinct election commissions in the presence of observers have counted and announced all numbers, including the number of ballots received (letter No. 01-11/66-213 of 26 March 2016). Absence of complaints and appeals on the procedures of opening polling stations is confirmed by a letter of the North-Kazakhstan oblast election commission (letter No. 78 of 26 March 2016).

CEC of the Republic of Kazakhstan offers to the International mission of observers from the OSCE and PACE to provide specific examples of irregularities during voting, counting and tabulation of results as well as numbers of polling stations with the designation of the oblast, city.

 

51. The voting process was assessed negatively in 8 per cent of observations, which indicates significant violations in the process. Observers noted indications of ballot box stuffing in 19 cases, series of seemingly identical signatures on the voter lists (16 per cent of observations), group voting (6 per cent), proxy voting (4 per cent), and improperly sealed ballot boxes (4 per cent). Counting was assessed much more negatively than voting with nearly half of observers (46 per cent) noting serious violations. Following the opening of the ballot boxes, IEOM observers noted eleven cases of ballot box stuffing (page 13).

The CEC RK standpoint. In accordance with sub-clause 5 of clause 3 of Article 20-1 of the Constitutional Act on Elections observers, proxies and media representatives should base their comments on documented, true and verifiable facts. Almost the same is prescribed in paragraph 4 of the Code of Conduct for OSCE/ODIHR observers: “Observers will base all conclusions on their personal observations or on clear and convincing facts or evidence”.

In own letters all oblast election commissions of the Republic of Kazakhstan did not confirm any fact of ballot box stuffing, seemingly identical signatures on the voter lists, group voting, and proxy voting. For example, in a letter of the West-Kazakhstan oblast election commission (letter No. 134 of 25 March 2016) it was reported that the use of dirty election technologies on election day was not observed, the facts of ballot box stuffing at the polling stations of the oblast was not fixed. Or the Kostanay oblast election commission informed that nowhere the facts of ballot box stuffing, seemingly identical signatures on the voter lists and group voting were recorded (letter No. 99 of 25 March 2016). The absence of any evidence of ballot box stuffing at the polling stations, the similarity of signatures on the voter lists, proxy voting also was reported in the letter of Kyzylorda oblast election commission (letter No. 01-11/66-213 of 26 March 2016). As we see, these facts are not confirmed by oblasts election commissions.

Critical observation on stuffing falsified ballot-papers in the ballot boxes cannot be reliable, because the ballot boxes are transparent. These ballot-papers would immediately be seen by large in number observers.

 

52. International observers were often prevented from following the process. Many observer teams were not allowed to fully scrutinize the voter lists. IEOM observers reported that in one quarter of observations they did not have a clear view of tabulation procedures or the procedures were conducted in separate rooms, which precluded meaningful observation (page 13).

The CEC RK standpoint. The election law provides to observers of foreign states, international organizations, representatives of foreign mass media the right to observe all election aspects. On election day, any observer of the OSCE and PACE Mission, when they faced with such violation, could report on it publicly on in a written form. However, no single application, complaint or appeal on election day and after it from any of the participant of the electoral process at the election of deputies of the Mazhilis of Parliament of the Republic of Kazakhstan, be they international observer, local observer or mass media representative, proxy of candidate, representative of political party, have not been filed by the CEC RK.

These facts are also not confirmed by oblast election commissions. In a letter of Kyzylorda oblast election commission (letter No. 01-11/66-213 of 26 March 2016) it was noted that all observers, who monitored election on the voting day, was provided with full opportunity to observe all procedures at all stages of the electoral process. Moreover, the chairpersons of commissions answered to all questions of observers and explained to observers of the OSCE and PACE Mission all actions made by them. Kostanay oblast election commission in its letter (No. 99 of 25 March 2016) reported that no obstacles were put on observers’ way to monitor the procedures of the voting day at any polling station. Moreover, Pavlodar oblast election commission (letter No. 148 of 28 March 2016) stated that all observers were registered at each polling station, put signatures in the registers and at the same time they noted the high level of organization of election, and the OSCE observers themselves reported about well coordinated work of the members of election commissions. Violations in actions of the commission by observers were neither identified nor registered.

 

53. Observers noted a relatively low number of signatures on the lists as compared to the turnout figures provided by the PECs and the number of voters who cast their ballots during observation. This raises significant concerns with regard to the turnout reported on the basis of the number of registered voters (page 13).

The CEC RK standpoint. It is not clear to the CEC of the Republic of Kazakhstan how did the observers of the OSCE and PACE Mission compare and conduct calculation of voter turnout in comparison with the number of signatures on the voter lists.

Oblasts election commissions cross-checked the voter turnout and have not identified any discrepancies. Voter turnout fully corresponded to the number of signatures on the voter lists.

This assumption of the OSCE/ODIHR Mission is ungrounded. Moreover, at the press conferences, held on 21 March 2016, international observers from CIS, SCO, CCTS, TurkPA, OIC and other independent observers from foreign states noted the high voter turnout, a good organization and the lawfulness of the election.

 

54. Observers linked significant procedural errors or omissions that were observed in a majority of counts to either poor understanding of the procedures by the PECs (in about a third of observations) or deliberate falsification (one in ten of the counts observed).

55. During counting, PECs largely failed to follow the reconciliation procedures that would ensure consistency and reliability of the counting.

56. In about half of observed counts, the numbers of voters in the voter lists, signatures on the voter list, absentee voters were not announced.

57. In a vast majority of observations, PECs did not use the control equations to cross-check the figures and had difficulties filling in the protocols.

58. Transparency was further negatively affected by observers being unable to see voters’ marks on the ballots in almost half of the observations.

59. Overall, an honest count, required by paragraph 7.4 of the 1990 OSCE Copenhagen Document, was not safeguarded (page 13).

The CEC RK standpoint on clauses 54, 55, 56, 57, 58, 59. The CEC of the Republic of Kazakhstan cannot comment the noted procedural errors, revealed by the OSCE and PACE Mission. The Mission must provide relevant facts on specific polling stations and the evidence of violations that have taken place by the opinion of the Mission’s observers. In addition, it is unclear for the Central Election Commission of the Republic of Kazakhstan at which polling station, as the OSCE and PACE Mission said, deliberate falsification of results of the vote count was observed.

In accordance with Article 20-2 of the Constitutional Act on Elections, international observers had the right to inform members of an election commission on his/her findings, observed violations, recommendations, to make public statements. The Central Election Commission of the Republic of Kazakhstan brought to the attention of observers of the OSCE and PACE International Mission about these rights both verbally (at briefings) and in writing form (by providing guidebooks) in English. No such actions by any of observer from OSCE and PACE Mission have been done.

At the same time, in the letters of the all territorial election commissions of the country it was said that the reports on various violations during process of voting and vote count on election day have not been received by these commissions. Also no complaints from other participants of the electoral process on these and other procedures of voting have been received by the CEC of the Republic of Kazakhstan and by public prosecutors’ offices.

For instance, the Pavlodar oblast election commission in its letter (No. 148 of 28 March 2016) it was reported that on voting day 36 observers from foreign states and international organizations, including 14 observers from OSCE and PACE Mission were present in the oblast. However, no critical observations regarding the process of voting, vote count was voiced by any of observers from the OSCE and PACE Mission. Appeals and applications to the election commissions from anyone were not submitted. The same is said by the North- Kazakhstan oblast election commission (letter No. 78 of 26 March 2016): “Any written applications, acts on violations, complaints and appeals, as well as all any other critical statements were not submitted to the election commissions of the oblast”.

West-Kazakhstan oblast election commission in its letter (No. 134 of 25 March 2016) informed that the procedure of vote count was held in compliance with the Constitutional Act on Elections: “This process was organized with great rate of openness, not only international observers but also representatives of political parties, representatives of the mass media had access to it, but there was no question of any violation”.

“At the vote count the precinct election commissions hold and voiced the verified data on voter lists and ballot-papers, the number of voters who voted at the polling stations and by absentee ballots was announced, cross-check of the data was done”, - was said in the letter of Kyzylorda oblast election commission (letter No. 01-11/66-213 of 26 March 2016).

Moreover, all members of election commissions at all levels were studied at trainings organized by higher level election commissions. Training courses, which were attended by members of oblast election commission, were organized for manages of district and precinct election commissions. During holding the training courses members of commissions passed tests for knowledge of election legislation, attended practical exercises on filling the protocols, lectures and training sessions, viewing films, prepared by the CEC RK, was organized.

In addition, all election commissions have received methodological materials, produced by the CEC RK. Thus, all measures to hold transparent, well-organized and fair elections were taken.

The OSCE and PACE Mission criticizes the procedural aspects of the conduct of election in the Republic of Kazakhstan, not supporting them with appropriate evidence.

 

60. Very often the PECs did not announce the figures in the protocols, and in about one third of observations a copy of the protocol was not posted in the premises, as required by law (page 13).

The CEC RK standpoint. The OSCE and PACE Mission must provide concrete arguments and evidence proving the fact of non-posting for public scrutiny of protocols of precinct election commissions on the voting results, indicating numbers of polling stations where this cases have been fixed. Moreover, to talk about revealed violations without providing concrete evidence is unprofessional.

If the OSCE and PACE Mission submits to the CEC of the Republic of Kazakhstan information on district and territorial election commissions on voting day, where these violations have been observed, then the CEC RK will immediately take all the measures to eliminate these violations. We would like to emphasize that in the final stage of election campaign, complaints and appeals on non-posting of the protocols on voting results to the public scrutiny have not been received by the CEC of the Republic of Kazakhstan.

The statement that the data recorded in the protocols have not been announced by precinct election commissions is refuted by the letters from all territorial election commissions of the country. For instance, according to the letter of the West-Kazakhstan oblast election commission (letter No. 134 of 25 March 2016) all of data were announced by precinct election commissions and recorded in the protocols, signed by the chairman and members of the commission. Copies of protocols were immediately posted in the premise of polling station for public scrutiny in a specially arranged place and were kept in the premise for two days; they were also issued by the request of a person present during vote counting procedure. This also is confirmed by the Kyzylorda oblast election commission (letter No. 01-11/66-213 of 26 March 2016): “precinct election commissions announced the data recorded in the protocols. Copies of protocols were posted for public scrutiny, as required by law”. And these were said in each letter of all other territorial election commissions of the country.

 

61. The tabulation process was assessed negatively in about a quarter of observations, which was linked to procedural violations and lacking transparency. IEOM observers reported that in one third of observations, PEC protocols were changed without a formal decision of the TEC and figures did not reconcile correctly in protocols in one fifth of the TECs observed. PECs often completed the results protocols at the TECs, contrary to the law (page 13).

The CEC RK standpoint. This criticism is not confirmed by participants of the electoral process. Moreover, oblast election commissions reported that this information is contrary to reality. “All protocols were compiled and filled by the members of precinct commissions at polling stations” – said the Kostanai oblast election commission in its letter (No. 99 of 25 March 2016). The same was reported by West-Kazakhstan oblast election commission: “the protocols of election commissions were filled in the premises of the same polling stations”.

Perhaps the observers of the OSCE and PACE Mission displayed that fact when the data in protocols were filled at the computer in TEC. This action may mislead observers of the OSCE and PACE Mission, as a result, they wrongly interpreted own vision. It is known that data in protocols are summed up on a computer in electronic format of Excel program.

The CEC RK requests the OSCE and PACE Mission to provide information, where, in view of observers of the OSCE and PACE Mission, certain violations on election day were revealed.

Without this information, the CEC RK cannot provide to them complete answers or comments.

In this regard, we ask the OSCE and PACE Mission during preparation of the Final Report on observation of election of deputies of the Mazhilis of Parliament of the Republic of Kazakhstan held on 20 March 2016 in the section Election Day to provide the exhaustive information on accurately detected fact with numbers of polling stations, indication of district, city, oblast.

Otherwise, the Central Election Commission of the Republic of Kazakhstan would regard the revealed violations as unfounded, not having real evidence and confirmation.

In the conclusion, the CEC of the Republic of Kazakhstan notes that all participants of this election campaign attended it on equal conditions. The competitive environment was provided. There were no serious violations of the Law on Election, which could affect the election results. From the part of political parties there was no appeal to the courts regarding the electoral process. And the overwhelming majority of international observers and experts in the field of elections, as well as domestic observers and representatives of international organizations recognized this election as corresponding to democratic principles. The culmination of it was the election results, which were fully accepted and supported by the citizens of our country - the Republic of Kazakhstan. This is what determined the legitimacy and fairness of the results of the recent election campaign.

Note: Official texts of the Comment are texts in State (Kazakh) and Russian languages. The text in English is unofficial translation.

List of abbreviations

 

CCTS – Council for Cooperation of Turkic-Speaking States

CEC of RK - Central Election Commission of the Republic of Kazakhstan

CIS – Commonwealth of Independent States

CPPK – Communist People Party of Kazakhstan

CSC – Citizen Service Center

DPK – Democratic Party of Kazakhstan

EOM – Election Observation Mission

ICCPR – International Covenant on Civil and Political Rights

NGO – Non-governmental organization

NSDP – Nationwide Social-Democratic Party

ODIHR – Office for Democratic Institutions and Human Right

OSCE – Organization for Security and Co-operation in Europe

PA – Public association

PDPP “Auyl” – People’s Democratic Patriotic Party “Auyl”

PEC – Precinct election commission

PP – political party

REC – Regional election commission

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

USA – United States of America

The Central Election Commission of the Republic of Kazakhstan