13.09.2016 |
Comment of the Central Election Commission of the Republic of Kazakhstan
to the Final Report of the OSCE/ODIHR Election Observation Mission
at Early Parliamentary Elections in the Republic of Kazakhstan
called on 20 March 2016
Astana, 9 September 2016
The Central Election Commission of the Republic of Kazakhstan (hereinafter – the CEC RK, the CEC of the Republic of Kazakhstan) appreciates that the OSCE/ODIHR Election Observation Mission at Early Parliamentary Elections of 20 March 2016 in Kazakhstan (hereinafter – OSCE/ODIHR EOM) in the Final Report of 27 June 2016 has positively assessed the following aspects of election of deputies of the Mazhilis of Parliament.
The CEC of the Republic of Kazakhstan qualifies the assessment by the OSCE/ODIHR EOM to the norms of the basic OSCE document on election related matters - Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE of 29 June 1990 (hereinafter – Copenhagen Document) and other documents of the OSCE as well as the Council of Europe. Extracts from the text of Final Report of the OSCE/ODIHR EOM are given in italics; full versions of abbreviations are given at the end of this comment.
1. 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, 6).
Thus, the OSCE/ODIHR EOM considers that the Republic of Kazakhstan follows the directions of paragraph 13.1 Concluding Document of the Vienna Meeting 1986 of representatives of the participating states of the CSCE, 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. Since the CEC of the Republic of Kazakhstan is not a body having the right of legislative initiative, a number of OSCE/ODIHR recommendations can be specified and disclosed in regulatory decisions of the CEC of the Republic of Kazakhstan.
2. The 20 March early parliamentary elections “were efficiently organized, with some progress noted”. Technical preparations for the elections were administered efficiently and within legal deadlines (pages 1, 8).
The Republic of Kazakhstan has fulfilled provisions of paragraphs 6 and 8 of the Copenhagen Document by ensuring effective organization of elections in strict compliance with the deadlines laid down in the electoral legislation.
3. Overall, the CEC operated in a professional manner. The CEC was generally forthcoming with information for the OSCE/ODIHR EOM. 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, 8).
As we can see the CEC of the Republic of Kazakhstan has fulfilled the norms of paragraphs 6 and 8 of the Copenhagen Document by ensuring transparency and openness of the election process in accordance with the letter and spirit of the Copenhagen Document.
4. Lower-level election commissions were trained by higher-level election commissions with the use of print and video materials produced by the CEC. The methodology used during the trainings varied and ranged from theatre-style lecturing to interactive tools. Closer to election day, PECs participated in trainings focusing on election day procedures, counting and completion of the results protocols. 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 8).
Thus, the Republic of Kazakhstan has implemented the obligations under paragraphs 7.3, 7.4, 7.7 of the Copenhagen Document thereby providing a constant increase of professional level of election commission members, respecting universal suffrage, following the necessary procedures for voter registration, election day procedures, fulfilling the rights of persons with disabilities, informing the electorate about the preparation and conduct of elections.
5. 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. More than 70 per cent of the PEC members in the polling stations observed were women (pages 2, 7).
Therefore, the Republic of Kazakhstan has fulfilled obligations under paragraphs 40, 40.2, 40.4, 40.10 of the Document of Moscow Meeting of the Conference on the Human Dimension of the OSCE of 3 October 1991 (hereinafter – OSCE Moscow Document) to ensure equal opportunities for full and equal participation of men and women in election administration.
6. Most OSCE/ODIHR EOM interlocutors did not express concerns regarding the accuracy of the voter lists (pages 2, 10).
The OSCE/ODIHR Mission recognized that the Republic of Kazakhstan has fulfilled its obligations under paragraph 7.3 of the Copenhagen Document to guarantee universal and equal suffrage.
7. 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 up to 30 days prior to election day (page 9).
In this statement the OSCE/ODIHR EOM confirms that the Republic of Kazakhstan has ensured implementation of the principle of universal and equal suffrage enshrined in paragraph 7.3 of Copenhagen Document by providing the citizens with the opportunity to cast their vote at the place of their stay.
8. As of 4 March, voters could review the voter lists and request PEC members to correct discrepancies in their records. Voters could also check their registration details and the location of their polling stations on the Internet (page 9).
The Republic of Kazakhstan, ensuring full transparency of the process of voter lists verification, raising awareness among citizens about the location of polling stations via public communications networks, thereby fulfilled its obligations under Paragraphs 7.3 and 7.7 of the Copenhagen Document to guarantee the principles of universal suffrage and free voting.
9. As of two weeks before election day, voters could also apply for an Absentee Voting Certificate that allowed them to vote in any polling station outside the city, town or village where they are registered (page 10).
Thus, the Republic of Kazakhstan by providing the citizens with the opportunity to elect the deputies of parliament at any polling station upon presentation of an Absentee Voting Certificate has implemented provisions of Paragraph 7.3 of the Copenhagen Document on the universal, direct and equal suffrage.
10. In a positive development, candidate registration was inclusive and six parties contested the elections. Candidate registration, notwithstanding restrictions within the current legal framework, was inclusive, and the CEC registered all 234 candidates nominated by six political parties by the legal deadline of 19 February (pages 1, 2, 11).
OSCE/ODIHR EOM suggests that Kazakhstan ensured implementation of provisions of Paragraph 7.5 of the Copenhagen Document, respecting the right of citizens to seek political office as representatives of political parties without discrimination.
11. Overall, 47 out of 234 candidates on party lists (20 per cent) were women. Twenty seven women (25.2 per cent) were elected deputies in the new Majilis (pages 2, 11).
Thereupon, the Republic of Kazakhstan has fulfilled obligations under Paragraphs 40, 40.2, 40.4, 40.8, 40.10 of the OSCE Moscow Document on ensuring equal conditions for participation of men and women in the management of state affairs through the legislative body of the country.
12. Contestants were generally able to campaign freely throughout the country. The OSCE/ODIHR EOM did not receive any reports of interference in campaign activities. 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 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 (pages 1, 2, 12, 13).
By this statement the OSCE/ODIHR EOM says that the Republic of Kazakhstan has fulfilled the requirements of Paragraph 7.7 of the Copenhagen Document providing political parties with equal conditions to election campaigning “in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them free of fear of retribution.”
13. Social media were used by all parties. Access to the Internet, including to social networks that offer alternative political opinions is growing mainly amongst the younger and urban population (pages 13, 14).
OSCE/ODIHR EOM recognizes that the Republic of Kazakhstan has implemented the provisions of Paragraph 7.8 of the Copenhagen Document, ensuring on a non-discriminatory basis the unhindered access of all political parties to such type of media, as social media.
14. Women played an active but less visible role in the campaign. At campaign events observed by the OSCE/ODIHR EOM, women comprised about a quarter of participants (page 13).
Thus, the OSCE/ODIHR EOM suggests that Kazakhstan has fulfilled obligations under Paragraphs 40.8 and 40.10 of the OSCE Moscow Document, promoting for “full participation of women in all aspects of political and public life” as well as recognizing “the rich contribution of women to all aspects of political life.”
15. Most party programmes supported inter-ethnic harmony. Nur Otan, Ak Zhol and Birlik also stressed equality for ethnic groups, CPPK opposed ethnic discrimination and called for inclusive citizenship. NSDP and Auyl pledged to revive the Kazakh language, national identity, traditions and culture. The election campaign was preceded by a public declaration by President Nazarbayev in support of official use of the Russian language (page 18).
This means that the Republic of Kazakhstan has fulfilled the provisions of Paragraph 30 of the Copenhagen Document, recognizing “the important role” of political parties “in the promotion of tolerance, cultural diversity and the resolution of questions relating to national minorities.”
16. In a welcome development, following August 2015 amendments to a CEC resolution, the CEC is now obliged to publish campaign finance overviews twice a month in the campaign period. For these elections, the CEC published two overviews on 3 and 16 March (page 2, 13).
As we can see, the Republic of Kazakhstan put into practice the provisions of Paragraph 7.6 of the Copenhagen Document, providing political parties with the necessary legal guarantees in terms of ensuring transparency in campaign financing, which allowed them to compete with each other on a basis of equality before the law and the authorities.
17. In addition to bank reports to the CEC, political parties are required to submit a report on all campaign finances within five days of the announcement of election results. On the basis of these reports the CEC published an overview of the total amount received by each party and the sources of those funds (page 13).
Accordingly, the Republic of Kazakhstan has fulfilled obligations under Paragraph 7.6 of the Copenhagen Document providing political parties with necessary legal guarantees for equal participation in elections as well as provisions of articles 10 and 14 of the Common Rules against corruption in the funding of political parties and electoral campaigns, adopted by the Committee of Ministers of the Council of Europe on 8 April 2003, by publishing records on all direct and indirect expenditures on electoral campaigns by each political party as well as by establishing independent monitoring in respect of the funding of political parties and electoral campaigns.
18. The Election Law obliges media to present objective campaign coverage and guarantees political parties equal access. The law provides the opportunity for paid advertising without any limitation, apart from those imposed by the overall campaign expenditure limit (page 15).
By this statement the OSCE/ODIHR EOM recognizes that provisions of Paragraph 7.8 on guaranteeing unimpeded and equal access to the media on a non-discriminatory basis for all political parties and candidates participating in the electoral process are implemented at the legislative level in the Republic of Kazakhstan.
19. Before the official start of the campaign, the CEC issued two sets of guidelines on how to interpret various provisions of the Election Law, one of which was partly and another entirely devoted to the campaign in the media. As publicly reported by the CEC prior to election day, no serious media violations were found (page 15).
Thereby the OSCE/ODIHR EOM says that the CEC of the Republic of Kazakhstan had clearly explained the provisions of the national legislation on the election campaign in media, and accordingly the Republic of Kazakhstan has fulfilled the requirements of Paragraph 7.5, 7.6, 7.7 and 7.8 of Copenhagen Document on conducting by political parties of campaigning in media “without discrimination”, “on the basis of equal treatment before the law”, “in a fair and free atmosphere”, “freely” and without any interference.
20. State-funded media made efforts to meet requirements for equal access. Positively, state-funded media showed a noticeable effort to meet formal time and space requirements to provide contestants with equal access. According to the OSCE/ODIHR EOM media monitoring results, the campaign’s was visible in the nationwide media and on social networks. Contestants were provided equal access to the state-funded media. During the campaign period, media covered all contending parties, with a noticeable effort of state-funded outlets to meet formal requirements to provide equal access (pages 1, 2, 16).
As we can see, the OSCE/ODIHR EOM confirms that the Republic of Kazakhstan has fulfilled its obligations under Paragraph 7.8 of the Copenhagen Document providing unimpeded access to state-owned media on a non-discriminatory basis for all political parties and individuals, who wished to participate in the electoral process.
21. The law provides sufficient opportunity for voters and parties to bring complaints about the electoral process before the courts, higher-level commissions and prosecutors. All electoral participants could file complaints about the decisions, actions or inactions of the election commissions or local authorities, as well as violations of the law. The few complaints filed during the campaign were promptly addressed by courts and prosecutors (pages 2, 18).
It follows that the Republic of Kazakhstan has fulfilled obligations under Paragraphs 5.1, 5.3, 5.5-5.19, 6, 7.7 of the Copenhagen Document guaranteeing the equal protection of the law for all stakeholders of electoral process as well as prompt and timely consideration of complaints of election process stakeholders by courts and the prosecutors.
22. Recent amendments to the election law addressed previous ambiguities and clarified that the Supreme Court has jurisdiction over all appeals of CEC decisions (page 18).
Thus, the Republic of Kazakhstan implemented the previous OSCE/ODIHR recommendations as well as the requirements of Paragraph 5.10 of the Copenhagen Document, by providing the electoral process stakeholders with effective and clear legal remedies against decisions of election management bodies.
23. The Election Law provides for citizen and international observation of elections. Citizen observers may be nominated by public associations and non-profit organizations. Political parties are entitled to have observers and proxies who enjoy similar rights, while the proxies can also request recounts of results in the polling station (page 19).
Thus, the OSCE/ODIHR EOM recognizes that the Republic of Kazakhstan has fully implemented the requirements of Paragraph 8 of the Copenhagen Document stipulating the presence of observers, both international and domestic, at elections.
24. The authorities invited international observers in an open and unrestricted manner. Overall, the CEC accredited a total of 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 learned of a number of civil society organizations that observed the parliamentary elections both nationwide and regionally. Party observers were present in most polling stations observed. A high number of party observers were noted during opening, voting and counting. Similarly, citizen observers were present in more than half of the polling stations observed by the international observers (pages 1, 20).
The Republic of Kazakhstan has once again fulfilled its obligations under Paragraph 8 of the Copenhagen Document, inviting international observers to elections and allowing them to observe them to the extent permitted by law as well as ensuring transparency and openness of the electoral process through the local observers. The Republic also ensured the authority of electoral process by providing observers from political party and public associations with the opportunity to observe election day procedures everywhere and scrupulously.
25. Most polling stations opened on time, were well equipped with all the necessary materials and the process was overall assessed positively. PECs followed most of the opening procedures. Most of the voting procedures were adhered to by PECs (page 20).
By ensuring the proper opening of polling stations and equipping them with all the necessary election materials, the strict adherence to the procedures for voting, Kazakhstan has fulfilled obligations under Paragraphs 6, 7.3 and 7.4 of the Copenhagen Document to ensure transparency and fairness of the electoral process.
Summarizing the above-mentioned, the OSCE/ODIHR EOM recognizes that Kazakhstan has fulfilled its international obligations in respect of 25 basic aspects of the recent parliamentary election. We would like to recall that the Statement of the OSCE/ODIHR EOM of preliminary findings and conclusions at presidential election of 26 April 2015 has given 23 positive assessments and at parliamentary election of 15 January 2012 – 14 positive assessments. As we can see from the OSCE assessments, the Republic of Kazakhstan has steadily reached progress in conducting electoral campaigns from one election to another. At the meeting with members of the CEC of the Republic of Kazakhstan on 28 March 2016 the Head of OSCE/ODIHR EOM Mr. Boris Frlec stated that the shortcomings mentioned by mission did not affect the election results. Thus, the Mission recognized the legitimacy of recent parliamentary election.
At the same time, the CEC of the Republic of Kazakhstan does not fully agree with the following critical observations of the OSCE/ODIHR EOM, and in this regard presents its arguments on them.
I. Executive Summary
1. Kazakhstan still has a considerable way to go in meeting its OSCE commitments for democratic elections (page 1).
The CEC RK standpoint: On 28 March 2016 at the meeting with members of the CEC of the Republic of Kazakhstan Head of OSCE/ODIHR EOM acknowledged that in the English version of the Statement of preliminary findings and conclusions the assessment of election does not mean a long path that Kazakhstan must overcome in order to comply with its OSCE commitments but “substantial measures to be taken by Kazakhstan to implement its OSCE commitments.” But such measures, if they are perceived by Kazakhstan as the appropriate to Copenhagen Document, it can adopt and implement them in the short term.
Virtually all independent observers from the US and Western Europe have noted the progress in democracy building. For instance, President of International Tax and Investment Center (USA) Daniel Alan Witt assessed the electoral process “as a new step forward in building institutes of representative government at constant improvement of democratic elections” as well as noted that observing elections in Kazakhstan for 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” (national daily newspaper: Kazakhstanskaya Pravda, 22 March 2016, page 9).
2. The legal framework restricts fundamental civil and political rights, and comprehensive reform is required. The constitutional framework for elections continues to be at odds with international standards and Kazakhstan’s commitments to democratic elections. Restrictive provisions related to suffrage rights, freedoms of assembly and expression have not yet been addressed despite previous OSCE/ODIHR recommendations (page 1).
The CEC RK standpoint: The legal framework for elections in general is consistent with the standards of international law and obligations of Kazakhstan under international treaties. 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. Genuine political choice is still lacking (page 1).
The CEC RK standpoint: By making this statement of the OSCE/ODIHR EOM contradicts itself. All 234 candidates nominated by six political parties were registered. All participants of the election campaign could participate on equal grounds. The competitive environment was provided. Political parties freely held election campaigning, voters were provided with opportunity to freely meet and discuss the parties’ election platforms 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 (pages 1, 2, 12).
The CEC RK standpoint: This statement of OSCE/ODIHR EOM contradicts its own statements about the free and open nature of the election campaign of political 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) said that representatives of leadership 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, Nation-Wide Social-Democratic Party 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.” (http://www.osdp.info/o-vyiborah-20-marta-2016-goda-zayavlenie-obshhenatsionalnoy-sotsial-demokratich....
5. State-funded media made efforts to meet requirements for equal access, but analysis and political debate were largely absent. An in-depth and comprehensive analysis that would provide voters with a meaningful opportunity to learn about candidates and concrete policies was absent. Journalistic coverage of the campaign was limited to factual news reports and articles (Footnote 64: State-funded Kazakhstan TV and Khabar TV aired spots of all contesting parties. NSDP placed paid advertisements only on those two channels, Ak Zhol, Auyl, Birlik and CPPK on three channels and Nur Otan purchased advertising spots on all seven monitored channels. For the last week of the campaign the party featured spots with party chairperson Nursultan Nazarbayev). As a result, an editorial, in-depth, comprehensive analysis that would provide voters with a meaningful opportunity to learn about parties and concrete policy proposals within news or in different types of programmes was absent (pages 1, 2, 16).
The CEC RK standpoint: All six political parties have been provided with a full right to hold campaigning, using all media tools, including debates and interviews. Forms of debates and interviews certainly suppose analysis of problems, and representatives of parties fully used the possibilities of these forms. Political parties widely covered their pre-election 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 instance, a representative of “Birlik” party during his trip to Atyrau covered 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 be 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 national 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.
6. Lower-level election commissions held sessions on an ad-hoc basis without informing stakeholders, which limited the transparency of the process (Footnote 27: 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. Article 20.1 of the Election Law stipulates that election commissions shall act based on principles of collegiality, publicity and transparency. Article 10 of the 2003 UNCAC states that: “The State Party shall, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decision making processes”) (pages 1, 8).
The CEC RK standpoint: According to the Constitutional Act of the Republic of Kazakhstan “On elections in the Republic of Kazakhstan (hereinafter – Constitutional Act on Elections) the territorial, district and precinct election commission create conditions for the free access for all persons to their decisions, which must be posted on public communication networks. During the preparation and conduct of the election campaign sessions of election commissions are held at least once every two weeks. At other times commissions hold their sessions as required at the initiative of the chairman or at least one third of the commission members. Candidates, political parties, which nominated party lists, when considering the issues affecting them, are notified in advance about sessions of corresponding election commissions and their agenda (clauses 3, 6, 7 of article 20 of the Constitutional Act on Elections). However, observers of foreign states, international organizations, representatives of foreign media are entitled to receive in election commissions the information about electoral campaign (sub-clause 2 of clause 6 of article 20-2 of the Constitutional Act on Elections). By this way the implementation of principles of transparency and openness in the activities of election commissions, stipulated in clause 1 of article 20 of the Constitutional Act on Elections and in article 10 of the UN Convention against Corruption is ensured.
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.
Observers, representatives of media and proxies may attend the sessions of election commissions (sub-clause 1 of clause 2 of Article 20-1 of the Constitutional Act on Elections), but the Constitutional Act on Elections does not oblige election commissions to notify the above mentioned persons about its sessions. Observers must express their interest and clarify the date and time of sessions in the election commissions.
At the same time, election commissions create conditions for free access of all persons to their decisions, which are posted in public communication networks, and in the case stipulated by the Constitutional Act on Elections are subject for other kind of publication (clause 5 of Article 20 of the Constitutional Act on Elections).
Any complaint from candidates to maslikhat deputies and political parties concerning non-admission to the sessions of election commissions have not been filed by the CEC of the Republic of Kazakhstan
7. The Election Law aims to ensure political party representation in election commissions yet does not provide for an enforcement mechanism; this led to the Nur Otan party being de facto over-represented in lower-level election commissions. The Nationwide Social-Democratic Party was largely under-represented and questioned the impartiality of the election administration (page 1).
The CEC RK standpoint: Constitutional Act on Elections guarantees representation of political parties in territorial, district and precinct election commissions. 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. Nation-Wide Social-Democratic Party was represented to a lesser extent in the election commissions as it nominated a small number of candidates. For example, during formation of the new compositions of election commissions in 2014 the Nation-Wide Social-Democratic Party presented candidates only in the composition of 18.97% election commissions, the Communist Party of Kazakhstan – 37.22 % and almost all nominated candidates were included in the compositions of the corresponding election commissions.
8. All citizens over 18 years of age have the right to vote, except those serving prison sentences, irrespective of the gravity of the crime. This blanket provision poses a disproportionate restriction that is at odds with international standards, OSCE commitments and good practice (Footnote 30: Paragraph 7.3 of the 1990 OSCE Copenhagen Document provides that participating States will “guarantee universal and equal suffrage to adult citizens” while Paragraph 24 states 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 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. Paragraph 14 of the 1996 UNHRC General Comment No. 25 to the ICCPR states that grounds for the deprivation of voting rights should be “objective and reasonable”) (pages 1, 9).
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 30 % - from 53.4 to 37 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/ODIHR EOM refers 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 57th 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 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 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 Constitutional Act 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.
It follows that the statement of the OSCE/ODIRH EOM 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. This restriction is stipulated by the Constitution, proportionate to the aim of legislation and is objective and reasonable.
9. All citizens over 18 years of age have the right to vote, except those declared incompetent by a court. This blanket provision poses a disproportionate restriction that is at odds with international standards, OSCE commitments and good practice (Footnote 29: Article 26 of the 1996 ICCPR states that: “All persons, regardless of their status, are equal before the law and that the law shall prohibit any discrimination and guarantee equal and effective protection against discrimination on any grounds”. Article 29 of the 2006 UN CRPD requires states to “guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others”). This blanket provision poses a disproportionate restriction that is at odds with international standards, OSCE commitments and good practice (Footnote 30: Paragraph 7.3 of the 1990 OSCE Copenhagen Document provides that participating States will “guarantee universal and equal suffrage to adult citizens” while Paragraph 24 states 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 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. Paragraph 14 of the 1996 UNHRC General Comment No. 25 to the ICCPR states that grounds for the deprivation of voting rights should be “objective and reasonable”) (page 1, 9).
The CEC RK standpoint: In the legal sense the mental incapability means the loss of a person’s ability to independently exercise his/her civil rights and responsibilities as a result of deep mental disorders caused by mental illness or dementia. The norms of international electoral law allow the deprivation of the right to vote in respect of persons found incapable by a court verdict. For example, such norm is contained in Article 18 of the Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the CIS member-states. Clause 1.1.d.iv-v of the Code of Good Practice in Electoral Matters of the Venice Commission of the Council of Europe stipulates that “deprivation of the right to vote and to be elected” “must be based on mental incapability” to be “imposed by express decision of a court of law.” The OSCE/ODIHR publication “Existing Commitments for Democratic Elections in OSCE Participating States” (Warsaw, October 2003) on page 59 explains that “the right to vote may be subject to loss for reasons that involve withdrawal of a person’s civil capacity, such as for mental incapacity. The grounds for potential loss of the right to vote must be clearly stated in law. The principle of proportionality must be respected. Loss of the right to vote or stand for election may be imposed only following adjudication by a court of law. The right to vote should be automatically restored once the grounds for its withdrawal have expired or been removed.”
The clause 7 of the Declaration on the Rights of Mentally Retarded Persons (UN General Assembly Resolution 2856 (XXVI) of 20 December 1971) says: “Whenever mentally retarded persons are unable”, because of the seriousness of their disability, “to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.”
The Republic of Kazakhstan implements all requirements of the above mentioned documents in full. The decision on the recognition of a person as mentally retarded can be taken only by a court on the basis of the forensic psychiatric examination. The court’s decision may be appealed to a higher court. The periodic re-examination of disabled persons with mental illness is provided. In the case of recovery or significant improvement in the mental state of a person previously recognized as incapacitated, the court finds him/her as capable.
Thus, the critical observation of the OSCE/ODIHR EOM that deprivation of electoral rights of the persons declared incompetent by a court is at odds with international standards, OSCE commitments and good practice does not correspond to reality.
10. There is no systematic mechanism for exchanging information between relevant institutions and procedures for cross-checking lists did not sufficiently guard against multiple entries (pages 1-2).
The CEC RK standpoint: Systematic mechanism for exchanging information between relevant institutions has been arranged. On election day, lower election commissions sent to the superior election commissions the data on voter turnout with periodicity of two hours according the sample, approved by the CEC. Almost at every polling station contacts with the Citizen Service Center has established for citizens, whose data were not included in the lists of voters, but who were registered in the area of electoral precincts. In this regard multiple entries of the same persons on the voter lists were excluded.
11. Election day proceedings raise serious concerns regarding the accuracy of voter lists (page 2).
The CEC RK standpoint: Procedures of cross-checking voter lists on the day of election were transparent and open. In case of doubt, Kazakhstani and international election observers could check the voter lists as well as bring attention of the precinct election commissions to the violations of the election legislation, hand them the reports on violations, appeal decisions of precinct election commissions to the higher territorial election commission or to the court. The CEC of the Republic of Kazakhstan was not aware of any evidence of violations of procedures with the voter lists on election day.
12. By law, independent candidates cannot stand for election and political parties are not allowed to form electoral blocs, contrary to OSCE commitments and other international obligations and standards (Footnote 39: The CEC received two requests from citizens wishing to be registered as independent candidates). (Footnote 40: 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 2002 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 paragraphs 15 and 17 of the 1996 General Comment No.25 to the ICCPR which state that “any restrictions on the right to stand for election…must be justifiable on objective and reasonable criteria” and that ”the right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties.” 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.”) (pages 2, 11).
The CEC RK standpoint: Paragraph 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 without any discrimination. The Constitution and the Constitutional Act on Elections provide for the right to stand for election of deputies of the Mazhilis of Parliament to candidates of political parties as well as candidates from the Assembly of People of Kazakhstan. Independent candidates can be self-nominated for all other elective offices – the President, deputies of the Senate of Parliament, and oblast, city and district maslikhats. Therefore, the current practice in the Republic of Kazakhstan is not contrary to the provisions 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 citizen V.A. Bezrukova and on 4 February – of A. Mukibekov on nomination as candidates to deputies of the Mazhilis of Parliament. Explanation of the norms of Constitution and election legislation was given to applicants.
Paragraphs 15 and 17 of the General Comment No. 25, adopted by the UN Human Rights Committee in 1996, are cited not fully. For example, the Human Rights Committee in the sentence of paragraph 15 of the General Comment marked by the OSCE/ODIHR EOM with three dots says 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 were of age above 25 years, as it is prescribed in Article 51 of the Constitution of the Republic of Kazakhstan. Paragraph 17 of the General Comment says only about one restriction, associated with “requiring candidates to be members of parties or of specific parties.” And in none of 27 paragraphs of the General Comment No. 25 the UN Human Rights Committee say that proportional electoral system (introduced in Kazakhstan in 2007 at election to the Mazhilis of Parliament) is a restriction on the right of citizen to stand for election.
Paragraph I.1.1.1.d of the Code of Good Practice in Electoral Matters of the Venice Commission of the Council of Europe does not state on the need to nominate independent candidates to the parliament. It contains conditions for deprivation of the electoral rights: they must be provided by law, the proportionality principle must be observed, based on mental incapacity or a criminal conviction for a serious offence. All these conditions are observed in the Republic of Kazakhstan.
As 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 in 2007 has led to the exclusion of the provision on electoral blocs, since it would put the parties, which are not involved in the blocks, in unequal conditions during election.
13. There are no special legal measures that promote participation of women in elections The Election Law does not contain a gender quota or other temporary special measures to enhance participation of women in the elections (Footnote 43: Paragraph 23 of the 1990 OSCE Istanbul Document commits participating States to “making equality between men and women an integral part of our policies”. Article 4.1 of the CEDAW states that the adoption “of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination”. Article 22 of the 1997 CEDAW Committee General Recommendation No.23 states that “political parties must embrace the principle of equal opportunity and democracy and endeavour to balance the number of male and female candidates”) (pages 1, 11).
The CEC RK standpoint: The OSCE documents do not contain the obligation of the participating states to set up legal quotas to ensure the 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. Paragraph 23 of the Charter for European Security (1999 OSCE Istanbul Document) has no a word that OSCE participating states are required to introduce gender quotas in parliaments of their countries.
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 22.7 % (http://ipu.org/wmn-e/world.htm). Thus, the gender ratio in Kazakhstan exceeds the global index by 4.4%. 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 (22.2 %), Japan (9.5 %) (see: http://ipu.org/wmn-e/classif.htm). It should be noted 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 (http://www.quotaproject.org/systemParty.cfm).
The Republic of Kazakhstan carries out the Gender Equality Strategy for 2006-2016. Observance of the gender component is one of the most important priorities of our social policy. Gender equality is recognized by us as a vital criterion of the real well-being of society. Kazakhstan intends to continue to work actively to promote equality between men and women.
14. The blurring of the distinction with the State benefited the ruling party. The dominant position of Nur Otan at all levels of government and administration for many years now challenges the development of political pluralism, as committed to in the 1990 OSCE Copenhagen document. In paragraph 5.4 of the 1990 OSCE Copenhagen Document, participating States committed to ensuring a “clear separation between the State and political parties.” Furthermore, this dominance has effectively blurred the distinction between the State and party, which is at odds with international commitments. A number of Nur Otan party offices are located in the same buildings as state and local government institutions (pages 1, 2, 12).
The CEC RK standpoint: The wording “blurring distinction with the State” of the ruling party "Nur Otan" does not correspond to reality. Kazakhstan strictly adheres to the constitutional principle of a clear separation between State and political parties. Clause 2 of Article 5 of the Constitution of the Republic of Kazakhstan states: “It is not permitted the establishment of 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. It is prohibited for civil servants to be guided by the decisions of political parties while they in exercise official authority, organizations of political parties cannot be created in the state bodies (clause 2 of Article 4 of the Law of the Republic of Kazakhstan of 23 November 2015 “On Civil Service”). 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 the 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 (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").
The statement of the OSCE/ODIHR EOM that a number of “Nur Otan” party offices were located in the same buildings as state and local government institutions, does not correspond to reality. According to the central office of “Nur Otan” party the buildings, where party offices are located, are owned by party or are rented.
15. The parties’ campaign platforms and rhetoric were complementary and aligned with the President’s long-term strategies. Most contestants refrained from challenging the ruling party or proposing political alternatives, thus limiting voters’ genuine political choice (Footnote 45: In paragraph 3 of the 1990 OSCE Copenhagen Document, participating States “recognise the importance of pluralism with regard to political organisations”. Article 9.2 of the 2002 CIS Convention states: “Genuine elections shall ensure a real political pluralism”. The President’s long-term strategies are: 100 Concrete Steps to Implement Five Institutional Reforms and Nurly Zhol (Bright Path). The NSDP was unique in questioning the policies of the ruling party and expressed concerns about the integrity of the electoral process (pages 2, 12).
The CEC RK standpoint: It should be noted that “100 Concrete Steps to Implement Five Institutional Reforms” and “Nurly Zhol” (Bright Path) covers all aspects of life: from social and economic to small and medium-sized businesses and the banking sector. These programs are aimed at long-term development of Kazakhstan. Therefore, it is possible that some points in the content of the campaign platforms of parties and rhetoric of statements echoed with a long-term strategy of the President. Nevertheless, political parties, which nominated party lists, had different political platforms, which not only differed from campaign program of “Nur Otan” party, but had a number of critical statements regarding its policy. For instance, the party “Auyl” 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 (http://auyl.kz/ru/pages/predvybornaya_programma). Communist People’s Party of Kazakhstan (CPPK) criticized the introduction of consumer society values, which, in its view, were alien for Kazakhstan (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 the Nation-Wide Social-Democratic Party (http://www.osdp.info/). As we can see, on the contrary, most of parties expanded and promoted the voters’ genuine political choice.
16. Since there is no obligation on the CEC to fully disclose the sources of funding and how campaign funds were spent, the transparency of campaign finances was limited (page 2).
The CEC RK standpoint: The OSCE documents do not regulate the procedure for ensuring the transparency of campaign finances. 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 political party was obliged to submit to the CEC RK report on the use of means from its election fund. This report was published in the nation-wide print media, thereby providing transparency of funding of the last campaign (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. At the same time 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.
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 of 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 (Articles 34, 36 of the Constitutional Act on Elections as well as Rules for spending means of election funds, adopted by the CEC of the Republic of Kazakhstan Resolution of 7 August 1999 No. 19/222). And the Code does not contain the requirement to publish information about the sponsors. Thus, we consider this critical observation of the OSCE/ODIHR EOM as incorrect.
17. The legal framework contains a number of restrictive provisions that stifle public debate and suppress alternative viewpoints. Extensive reporting on the President’s activities dominated in most media outlets, thus benefiting the ruling party (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. Stipulated by the legislation responsibility for the intentional and unjustified public insult, defamation and libel, in no way stifles public debate and suppress alternative viewpoints.
Media coverage of campaign events of all six political parties, participated in election, was equal. Reporting on the President’s activities in his official position is not pre-election campaign since he personally was not involved in election campaign, did not call voters to vote for “Nur Otan”.
18. One contesting party (NSDP) was discernibly disadvantaged in terms of coverage of its platform and leaders (page 2).
The CEC RK standpoint: No discriminatory treatment of media in respect to Nation-Wide Social-Democratic 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 Nation-Wide Social-Democratic Party, 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.
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, contrary to international standards (Footnote 73: Under Article 2.3(a) of the ICCPR States obligated themselves “To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”.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.”) (pages 2, 18).
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. Thus, the Republic of Kazakhstan at the legislative level respects the recommendations of the Venice Commission of the Council of Europe set out in paragraph II.3.3.3.f of the Code of Good Practice in Electoral Matters as well as citizens are provided with an effective remedy.
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 treating with confidence to the obtained results of the election, must be established. Therefore, this right is vested only to representatives of highest authorities.
20. Issues raised before the CEC were not considered to be of a complaint nature and were therefore not addressed collegially and publicly. Prior to election day, the CEC received 30 official letters regarding the Majilis elections, none of which were treated by the CEC as official complaints. Despite a number of letters being of a complaint nature, they were processed as requests for information, clarifications or proposals and were therefore not addressed collegially and publicly (Footnote 76: Paragraph 5.11 of the 1990 OSCE Copenhagen Document provides that “administrative decisions against a person must be fully justifiable and must as a rule indicate the usual remedies available”) (page 2, 19).
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 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 the Nation-Wide Social-Democratic Party 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 campaign events of the Nation-Wide Social-Democratic Party (of 4 March 2016) have not been proved at examination. Appeal of the Nation-Wide Social-Democratic Party of 12 March 2016 on refusal of TV Channel “Khabar” to broadcast campaigning video-materials was misinterpreted by the Nation-Wide Social-Democratic Party itself and after elimination of shortcomings it was aired by TV channel. Verbal appeal of representative of the Nation-Wide Social-Democratic Party 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 Nation-Wide Social-Democratic Party.
21. National minority issues were not visibly raised in the campaign (page 2).
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 (http://assembly.kz/ru/news/informacionnoe-soobshchenie-11 ).
III. Background and Political Context
22. The political landscape is characterized by the dominance of Nur Otan and a lack of genuine opposition in the country, with several prominent critics of the government either imprisoned or living in exile (Footnote 7: In paragraph 3 of the 1990 OSCE Copenhagen Document participating States “reaffirm that democracy is an inherent element of the rule of law. They recognize the importance of pluralism with regard to political organizations”) (page 4).
The CEC RK standpoint: The Constitution of the Republic of Kazakhstan guarantees the ideological and political diversity. Seven political parties operate in the country, including oppositional Nation-Wide Social-Democratic Party and “Azat”, which have different ideological and political views, and, thus, contribute to genuine political pluralism. In this regard, the Republic of Kazakhstan fully adheres to the provisions of paragraph 3 of the 1990 OSCE Copenhagen Document. The statement that several prominent critics of the government are imprisoned or live in exile does not correspond to reality. Because some high-ranked officials serve prison sentence for commitment of a number of criminal offenses and living “in exile” “critics of the government” in reality were not expelled but willingly and hurriedly left the country after exposure of committed by them scandal corruption crimes and only abroad began to actively criticize the government.
23. In December 2015, Kazakhstan adopted amendments to a number of laws regulating the activities of non-governmental organizations. The amendments require increased reporting on organization activities, employees, volunteers and the use of funds, and potentially limit access to international funding, introduce additional oversight of civil society activities, and impose sanctions for failure to report that include fines and suspension of an organization’s right to operate. On 1 March the Ministry of Culture and Sports changed the rules on implementation of these new amendments, slightly lightening the reporting requirements. Still, organizations involved in citizen observation for the parliamentary elections raised concerns to the OSCE/ODIHR EOM over the impact the amendments may have on the ability of civil society to function in an effective manner (Footnote 8: On 19 October 2015, the OSCE Representative on Freedom of the Media (RFoM), Dunja Mijatović, warned that “introducing legislation that would put NGOs under strict governmental supervision, including the control of foreign grants, is worrying for civil society actors in general”) (pages 4-5).
The CEC RK standpoint: Law of the Republic of Kazakhstan of 2 December 2015 "On introduction of changes and additions to some legislative acts of the Republic of Kazakhstan on the issues of activities of non-governmental organizations" has nothing to do with the election campaign for election of deputies of the Mazhilis of the Parliament of 20 March 2016.
The amendments were aimed at ensuring the transparency of activities of non-profit organizations (information about the founders, structure of property, sources of financing, spending of funds), publicity and openness of the process of state support to NGOs (database on NGOs applying for state orders, grants and awards, activities of Coordinating Council on Cooperation with NGOs and others).
IV. Electoral System and Legal Framework
24. This provision (election of 9 deputies of the Mazhilis by the Assembly of the People of Kazakhstan) continues to be at odds with Paragraph 7.2 of the 1990 OSCE Copenhagen Document, which provides for “all seats in at least one chamber of the national legislature to be freely contested in a popular vote” (page 5).
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 31 of the OSCE Copenhagen Document and other international instruments on national minorities representation. And this measure is stipulated by Article 51 of the Constitution of the Republic of Kazakhstan.
Paragraph 31 of the 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 Parliament.
Therefore, the election of 9 deputies of the Mazhilis of Parliament is consistent with paragraph 31 of the 1990 OSCE Copenhagen Document.
25. In addition, members of the APK maintain the right to vote for the directly-elected Majilis deputies. Thus, APK members effectively enjoy two votes in the same elections. This arrangement is at odds with the principle of equality of the vote provided for by international commitments and standards for democratic elections, as well as by the Constitution (Footnote 11: The principle of equal suffrage is provided for by article 21(3) of the 1948 Universal Declaration of Human Rights (UDHR) and Article 25 (b) of the 1966 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 5).
The CEC RK standpoint: 98 deputies are elected from political parties under proportional representation system in a single national constituency and 9 deputies are elected by the Assembly of the People of Kazakhstan 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 from the political parties and for certain candidates from the Assembly, that is, they voted for two different subjects.
Day of election of Mazhilis deputies to be elected by the Assembly may not coincide with the day of election of the Mazhilis deputies to be elected by party lists.
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.
According to the 1999 OSCE Lund Recommendations of the Effective Participation of National Minorities in Public Life, namely the Recommendation No. 7, one of the forms of representation of national minorities in legislative bodies is designated as “reserved number of seats”. Reserved seats are the seats, which are specifically set out for national minorities. MPs occupying these seats are elected exclusively by members of certain minority groups. Examples of reserved seats can be found in Croatia, Slovenia, Romania, and ex-officio they include representation of Sami people (Lapps) in Finland.
Thus, the fact that the APK members actually voted twice on one election is consistent with the principle of equal suffrage, stipulated by international commitments and standards for democratic elections.
26. 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 12: Some OSCE/ODIHR EOM interlocutors expressed concern regarding the high threshold and its effect on pluralistic representation in parliament) (page 5).
The CEC RK standpoint: First of all, it should be noted that in this case all parties participating in the election are on the equal footing.
Seven-percent threshold is intended to cut off the smaller parties, which do not enjoy sufficient support from the population and which do not have enough organizational and financial resources for political struggle. 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.
International experience shows that in many countries there are a variety of electoral thresholds. Indicator in 7% is not the 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 the party coalitions have to overcome the 8 percent threshold. In Hungary, the 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.
27. Seats are allocated to candidates on the lists by the parties after the elections and the parties are not bound by any list order. This limits the information available to voters with regard to the electoral contestants, contrary to good practice (Footnote 13: See section I.3.3.1.b.ii of the 2002 Council of Europe’s European Commission for Democracy through Law (Venice Commission) Code of Good Practice in Electoral Matters which 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 5).
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 CEC of the Republic of Kazakhstan clearly fulfilled this obligation. The country’s voters could familiarize with the lists of registered candidates, included in the party lists from all political parties, and with candidates from the Assembly of People of Kazakhstan, which were published in newspapers “Egemen Kazakhstan” and “Kazakhstanskaya Pravda” dated 4 February, 6 February, 9 February, 12-13 February, 3 March 2016, on the official Internet resource of the CEC of the Republic of Kazakhstan (www.election.gov.kz) and from other sources of information.
All 234 candidates of six political parties held numerous meetings with voters, at which they gave information about themselves as candidates of this or that political party and about activity of their party.
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.
28. Despite Kazakhstan’s commitment to uphold standards for democratic elections and participation in a number of major international and regional instruments (Footnote 14: Including the 1966 ICCPR, the 1979 Convention for Elimination of All Forms of Discrimination against Women (CEDAW), the 2003 United Nations Convention against Corruption (UNCAC), the 2006 Convention on the Rights of Persons with Disabilities (CRPD), and the 2002 CIS Convention. Since 2012, Kazakhstan is also a member of the Venice Commission), restrictive provisions, including those related to candidate eligibility and voting rights of prisoners, as well as restrictions on freedoms of assembly and expression remain in place. Significant reform of the legal framework for elections is needed for fundamental civil and political rights to meet OSCE commitments and other international obligations and standards for democratic elections (page 6).
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 “mental incapacity or 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.
29. Despite repeated statements of Kazakhstan authorities about implementation of most previous OSCE/ODIHR recommendations, there has been little effort to reform election legislation since the 2012 parliamentary elections and almost all OSCE/ODIHR recommendations remain unaddressed (page 6).
The CEC RK standpoint: The implementation of the previous OSCE/ODIHR recommendations includes guarantees for a clear separation between the state and the party, the implementation of the rules on the use and control of absentee vote certificates, the publication of the interim financial reports on election funds of political parties, the encouraging the media to provide voters with various and analytical information, the taking of duly decisions on disputes relating to elections, guaranteeing the reliability of the voting.
A number of other OSCE/ODIHR recommendations have been implemented in the election legislation of Kazakhstan prior to their submission.
V. Election Administration
30. Footnote 18: Political party nominees are not required to be members of the nominating party. The Election Law also sets incompatibility criteria for the membership of election commissions, by which deputies, candidates, judges as well as some other civil servants cannot serve in commissions. In one instance, observers noted that secretary of Stepnogorsk city TEC was running as a candidate for local elections, which is prohibited by Article 20.12.2 of the Election Law (page 7).
The CEC RK standpoint: Request of the CEC of the Republic of Kazakhstan on this issue was sent to the region, mentioned by the OSCE/ODIHR EOM.
According to information submitted by election commission of Akmola oblast (letter No. 44 of 25 July 2016) the chairman of district election commission No. 8 on election deputies of city maslikhat Ms. N.B. Podolko on 15 February 2016 was registered as candidate to deputy of Stepnogorsk city maslikhat. In this regard, in accordance with clause 12 of Article 20 of the Constructional Act on Elections on the same day Stepnogosk city TEC instead of her appointed another person as a member of district election commission. Thus, there was no any breach of the election law, which was noted by the OSCE/ODIHR observers.
31. By law, each party is entitled to one seat on a given commission; Maslikhats, however are not 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 the turnover of commissioners (page 7).
The CEC RK standpoint: According to the election legislation of our country political parties can propose to the composition of election commissions the candidates, 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 in a number of regions of the country.
Herewith, every citizen of Kazakhstan has the right to decide himself to indicate or not to indicate his party membership (clause 1 of Article 19 of the Constitution), and maslikhats at election of members of election commissions are not eligible to demand from nominees 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 a member of election commission to replace the retired one until the election of a member of election commission by a body forming an election commission in the order established by Article 10 of the Constitutional Act on Elections.
Thus, the OSCE/ODIRH EOM incorrectly interprets this provision of the Constitutional Act on Elections, which ensures representation 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.
32. In some lower-level election commissions visited by the OSCE/ODIHR EOM, all members affiliated themselves with Nur Otan (Footnote 19: 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 oblast, Karakiya TEC, Ridder and Semey city TECs in East Kazakhstan oblast ) (page 7).
The CEC RK standpoint: Requests of the CEC of the Republic of Kazakhstan on this issue were sent to regions, mentioned by the OSCE/ODIHR EOM.
All members of Mamlyut TEC in North-Kazakhstan oblast (letter of TEC of North-Kazakhstan oblast No. 180 of 20 July 2016) are members of “Nur Otan” party buy 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 Ridder and Semey cities (letter of TEC of East-Kazakhstan oblast No. 55 of 12 July 2016) changes in the composition of election commissions were made 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.
33. In several other instances commissioners were unaware of the organizations they represented (Footnote 20: Astana city TEC, Astana city district TEC, Glubokoe and Oskemen TECs in East Kazakhstan oblast, Ertis, Kashir and Pavlodar TECs in Pavlodar oblast) (page 7).
The CEC RK standpoint: Requests of the CEC of the Republic of Kazakhstan on above issue were sent to regions, mentioned by the OSCE/ODIHR EOM.
According to information, submitted by TECs of Astana city, East-Kazakhstan oblast and Pavlodar oblast it should be noted the following.
In Astana city (letter No 780 of 18 July 2016) data about organizations, which election commission members represent, and on the procedure of their election were provided to all observers in the volume established by law. In East-Kazakhstan oblast (letter No. 55 of 12 July 2016) due to termination of the activities of two political parties – Party of Patriots of Kazakhstan and Communist Party of Kazakhstan – the replaced and newly elected members of election commissions could misunderstood the sense of raised questions on membership in organization
In Pavlodar oblast (letter No. 178 of 11 July 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, and therefore the information of the OSCE/ODIHR on this oblast is incorrect.
34. The de facto over-representation of Nur Otan in election commissions is at odds with the aim of the Election Law, which entitles each party to one seat on lower-level election commissions, and raises concerns regarding the impartiality and integrity of commissions provided for by international standards (Footnote 21: Paragraph 20 of the 1996 UN Human Rights Council (UNHRC) General Comment No. 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 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.” Under Article 19.2(j) of the 2002 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”). A perceived lack of impartiality negatively affected the confidence of stakeholders in the election administration (page 7).
The CEC RK standpoint: 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’s Party of Kazakhstan; 491 representatives of the Nation-Wide Social-Democratic Party. Nation-Wide Social-Democratic Party is represented in election commissions to a less extent because it has nominated less (small) number of candidacies.
It should 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. Thus, Kazakhstan’s election law fulfils the norms of paragraph 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, Article 19.2(j) of the 2002 CIS Convention.
The CEC of the Republic of Kazakhstan 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.
35. Some OSCE/ODIHR EOM interlocutors expressed concern that the formation of election commissions lacked transparency (Footnote 22: 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. Article 7.1 (a) and (b) of the 2003 UNCAC highlight the importance of adopting necessary measures by State Parties, including strengthening of recruitment systems of civil servants, with adequate procedures for the selection based on principles of efficiency, transparency and objective criteria) (page 7).
The CEC RK standpoint: Requests of the CEC of the Republic of Kazakhstan on the above issue were sent to all regions of the Republic of Kazakhstan.
According to the information of oblast election commissions: in West-Kazakshtan oblast (letter No. 107 of 11 July 2016), in East-Kazakhstan oblast (letter No. 55 of 12 July 2016), in Kostanay oblast (letter No. 106 of 11 July 2016) and in other regions of the country the formation of election commissions was held in compliance with the Constitutional Act on Elections: in 2014, during formation of election commissions, the information from political parties on the facts of unjustified refusal to elect in the composition of election commissions has not been received.
After calling of election the compositions of territorial, district and precinct election commissions were published in local media.
There was no a ban for the representatives of political parties, who proposed their candidates to election commissions, to attend the sessions of maslikhats on the issue of election of members of the election commissions.
Various training sessions on the procedures for the appointment of the commission members were held with members of election commissions of all levels.
We ask the OSCE/ODIHR EOM to submit to the CEC of the Republic of Kazakhstan the specific facts on the lack of transparency during the formation of election commissions in order to eliminate this point of criticism.
36. 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 23: Such cases were reported to the OSCE/ODIHR EOM in Aktobe, Almaty, Karaganda, Mangystau and Zhambyl oblasts. The Nur Otan holds an overwhelming majority in the Maslikhats throughout the country. In several instances the Maslikhats stated that the NSDP did not submit sufficiently qualified candidates. Article 25 (c) of the 1966 ICCPR states that: “Every citizen shall have the right to have access, on general terms of equality, to public service in his country”). This resulted in NSDP being largely under-represented countrywide including in executive positions in RECs and TECs (Footnote 24: According to the CEC data from 19 February, 62 per cent of members represent different parties, while the remaining 38 per cent were nominated either by public associations or higher-level election commissions. The parties have the following representation: Nur Otan (214 members), CPPK (193 members), Ak Zhol (193 members), Birlik (191 members), Auyl (189 members), NSDP (26 members) (page 7).
The CEC RK standpoint: Requests of the CEC of the Republic of Kazakhstan on this matter were sent to regions, mentioned by the OSCE/ODIHR EOM, after publication of the Statement of Preliminary Findings and Conclusions by the International Mission of OSCE/ODIHR, PA OSCE, PACE on observation of early parliamentary election in the Republic of Kazakhstan, called on 20 March 2016.
According to the information, submitted by maslikhats of Aktobe, Almaty, Karagandy, Mangistau and Zhambyl oblasts it follows.
It should be noted that in Zhambyl oblast (letter No. 01-139 of 25 March 2016) the Nation-Wide Social-Democratic Party nominated only one candidacy and it was removed by his own request.
In Mangistau oblast (letter No. 01-25-122 of 25 March 2016) the Nation-Wide Social-Democratic Party did not nominate any candidate.
In Karagandy 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 a member of election commission to replace the retired until election of a member of election commission by the corresponding maslikhat.
In Almaty oblast (letter No. 17-17-117 of 28 March 2016) the Nation-Wide Social-Democratic Party nominated 109 candidates, of them 108 persons (almost 100 per cent) were elected.
In Aktobe oblast (letter No 06-01-02/184 of 29 March 2016) Nation-Wide Social-Democratic Party nominated one candidate to the composition of oblast election commission, then at the maslikhats session, which was attended by 26 deputies, based on the results of voting this candidate received only 2 votes and did not pass to the election commission. As we can see, the representation of the Nation-Wide Social-Democratic Party in the country’s election commissions depended on the political party itself.
37. 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 25: The CEC and Prosecutor's offices registered complaints on the composition of election commissions as matters related to the Maslikhat elections, and they were therefore not shared with the OSCE/ODIHR EOM) (page 8).
The CEC RK standpoint: This statement does not correspond to reality. As it was previously mentioned in the Comment of the Central Election Commission of the Republic of Kazakhstan dated 5 April 2016 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 Kazakhstan, called on 20 March 2016, the information about complaints related to maslikhats election was transferred by the Head of Legal Department of the CEC RK Office Ms. 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 process of election of maslikhats’ deputies was not within the OSCE/ODIHR competence.
38. 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. In addition, in several instances, election commissioners held administrative positions either in local executive or representative bodies (Footnote 26: Such cases were observed at REC, TEC and PEC levels in Almaty city, Aktobe, Akmola, Atyrau, East Kazakhstan, Karagdanda, Kostanai and Kyzylorda oblasts). Undue influence from local authorities over the work of election commissions also raises concerns regarding their independence (page 8).
The CEC RK standpoint: Requests of the CEC of the Republic of Kazakhstan on this matter were sent to the regions, mentioned by the OSCE/ODIHR EOM – Almaty city, Aktobe, Atyrau, East-Kazakhstan, Kostanay and Kyzylorda oblasts.
According to information of oblast election commissions: in Almaty city (letter No. 25 of 26 March 2016), in East-Kazakhstan oblast (letter No. 55 of 12 July 2016), in Aktobe oblast (letter No. 43 of 25 March 2016), in Kostanay oblast (letter No. 106 of 11 July 2016) the clause 9 of Article 19 of the Constitutional Act on Elections that election commission must not compose of employees of one organization was fully fulfilled. Members of election commissions at regular job were not employees of the same organization, and therefore, were not supervised by the chairperson of the election commission.
In Kyzylorda oblast (letter No. 01-11/71-262 of 22 July 2016) chairpersons in 202 election commissions (40 %) out of 506 election commissions of the oblast were supervisors of three and more commissions’ members at their regular job. However, while electing a chairperson of the election commission, the members of commission, despite their status and subordination, were guided by the availability of experience in holding election, knowledge of election legislation and skills to work with the population.
There is no prohibition in the election legislation of Kazakhstan that members of election commissions hold administrative positions in local executive and representative bodies. At the same time it should be noted that, for instance, in the USA and countries of West Europe (UK, Italy, France) the organization of elections is assigned to the executive authorities.
39. On election day and the days following, observers were not provided with requested information. Namely, in a number of polling stations, observers were denied access to voter lists as well as details regarding unused and used absentee voting certificates. In other cases observers were not provided with TEC protocols. Several stages of trainings notwithstanding, the actions of lower-level election commissions on election day were indicative of intentional malpractice (page 8).
The CEC RK standpoint: OSCE/ODIHR EOM needs to provide specific evidence proving the facts of refusal to provide observers with requested information, denial of the access to voters’ lists and data on unused and used absentee voting certificates with indication of numbers of polling stations and regions, where these cases have been reported.
However, it should be noted that according to information of all territorial election commissions of the country these election commissions did not receive reports on any violations on election day and the days following election.
For example, Almaty oblast election commission in its letter (No. 18 of 18 July 2016) informs that “on election day and the days following complaints against actions of any election commission have not been filed. In this regard the statement on intentional commitment of violations is ungrounded.”
Also, Karagandy oblast election commission says the same (letter No. 31 of 13 July 2016): “The protocols upon request of foreign observers after vote count were provided immediately. They have not revealed any violation during process of voting.”
In the letter of Kyzylorda oblast election commission (letter No. 01-11/71-2262 of 22 July 2016) it is reported: “All observers, who monitored on election day, were provided with all requested information. Chairpersons of election commissions answered all questions of observers, provided all requested information, showed voter lists, informed about number of voters, who casted their voted, about the number of unused and used absentee voting certificates, explained all actions performed by them. The observers were provided with TEC protocols, the oblast election commission immediately provided observers with requested information by e-mail.”
VI. Voter Registration
40. The role of the CEC is limited to verification of entries submitted by the Akimats thereby rendering it dependant on the quality of the work performed at the local level (page 9).
The CEC RK standpoint: Indeed, the responsibility to compile the voters’ lists and data about voters is assigned to local executive bodies (akimats), as it considerably simplifies this procedure since they have necessary recourses and relevant data.
During compilation of voter lists akimats use both their own recourses (including the method of door-to-door canvassing) and data of other state authorities, bodies of internal affairs, justice, as well as bodies performing registration of population and other authorities, possessing the required information in this area.
It should be noted that the work with database of the voters is not a one-time event, dedicated to a particular election. The work on maintaining the database up-to-date is performed systematically. Once every six months – as on 1 January and on 1 July – the local executive bodies submit to the CEC of the Republic of Kazakhstan the information about the number of voters in regions.
Therefore, the statement of the OSCE/ODIHR EOM that the role of the CEC of the Republic of Kazakhstan is limited to verification of voter lists is not quite correct, because during any election campaign akimats, election commission and relevant state bodies perform a joint work on the verification of voter lists.
During preparation and conduct of election the precinct election commissions verify the voters’ lists at their electoral precincts, familiarize citizens with the lists, consider applications on errors and inaccuracies on the lists and take decisions on making corresponding changes on them.
41. Some interlocutors informed the OSCE/ODIHR EOM that over the course of several elections they are consistently absent from the voter list despite their registration on election day. This, as well as the scale of additions of voters on election day, indicate deficiencies in the voter registration system or in the verification mechanism that remain unaddressed for a long period of time (page 9).
42. Since voter lists are compiled and delivered to polling stations two weeks before election day, any additions at the level of the polling station during the scrutiny period and on election day are not subject to systematic centralized verification (pages 9-10).
The CEC RK standpoint on items 41, 42: Constitutional Act on Elections clearly regulates the procedure for compilation of voter lists, which are formed on the basis of registration of a voter at the place of residence of the corresponding electoral precinct (this is a uniform means of collecting data for voter lists). A citizen may be included only in one voter list. In addition, in order to prevent duplicate entries in the voter lists, the CEC of the Republic of Kazakhstan twice a year and on the eve of the election cross-checks the electronic register of voters.
The boundaries of the polling stations may be changed from election to election because of the increase or decrease in the number of voters. Within seven days after calling election the heads of local executive authorities (akims) notify the voters through mass media about the boundaries of polling stations. Within the same period the compositions and locations of precinct election commissions are published.
Prior 30 days before the election, the voter may apply to the appropriate local executive body in order to check at which polling station he/she is in the voters’ list.
Fifteen days is a time frame, which is fixed by the election legislation of the Republic of Kazakhstan to enable citizens to familiarize with voter lists directly in the premises of precinct election commission across the country.
Every citizen had the opportunity “to appeal against non-enrolment, incorrect enrolment or exclusion from the list as well as against inaccuracies in the data about a voter” and submit to the precinct election commission or the court the corresponding application on the need to make corrections to the list (Article 26 of the Constitutional Act on Elections). And this is another undeniable indicator of transparency of election and the electoral process in general.
The CEC RK requests the OSCE/ODIHR EOM to submit specific information on regions, where observers received reports about absence of voters on the voter lists over the course of several elections.
At the same time, the critical observation of the OSCE/ODIHR EOM on the number of added voters on election day, which point to the shortcomings in the voter registration system and in the mechanism of verification, is incorrect, since the introduced hot-link mechanism between members of precinct election commission and employees of Citizen Service Centers (CSC), on the contrary, serves the purpose of immediate check of voter registration at the place of residence and adding him in the voter list on election day, and most importantly, free exercise of electoral rights by citizens.
43. The polling stations were to retain the AVCs on election day when adding such voters to the voter lists. However, in 18 per cent of observations, polling stations did not follow this rule to safeguard against possible multiple voting. In addition, during the closing of polling stations, in more than half of the observations, PECs did not follow other procedures related to AVCs (Footnote 34: In over 50 per cent of observations, PECs did not announce total number of AVCs received and cancelled, neither was number of absentee voters determined in those cases) (page 10).
The CEC RK standpoint: According to clause 16 of the CEC RK Resolution of 8 April 2009 No. 161/306 “On approval the Rules for issue and keeping records of absentee voting certificates” the district, city, district in city TECs submits reports on used AVCs to the corresponding oblasts, cities of Astana and Almaty TECs along with the attached statements on cancellation of unused AVCs. Also, the protocol on election results has a column, where the number of citizens voted with AVCs is indicated. That is, contrary to the critical observation of the OSCE/ODIHR EOM accounting for the number of issued or used AVCs was conducted.
When issuing absentee voting certificate, a record about its issuance is made in the voters’ list. Issuance of absentee voting certificates is to be finished at 18 hours by local time prior to voting day and after 18 hours the unused absentee voting certificates are to be cancelled and only after the tabulation are to be transferred to the higher-level election commission. Absentee voting certificate, on the basis of which the ballot-paper was issued to a voter, is to be attached to the voters’ list.
According to official information of oblast TECs of North-Kazakhstan oblast (Ref: 180 of 20 July 2016), Kyzylorda oblast (Ref: 01-11/71-262 of 22 July 2016), Kostanay oblast (Ref: 106 of 11 July 2016) as well as all other oblasts, cities of Astana and Almaty TECs they have not received any written and verbal appeals concerning accounting and counting of AVCs from OSCE/ODIHR observers.
44. Even though commissioners could verify voters’ whereabouts by contacting Citizen Service Centres, OSCE/ODIHR EOM observers reported that on election day such verification with the central system was not consistently conducted, which could lead to multiple registrations (Footnote 36: Verification by the PECs with Citizen Service Centers was not consistently conducted in Almaty district in Astana City and Mangystau oblast. Article 25.3 of the Election Law stipulates that a citizen can only be included in one voter list) (page 10).
The CEC RK standpoint: Requests of the CEC of the Republic of Kazakhstan on this matter were sent to regions, mentioned by the OSCE/ODIHR EOM – Astana city and Mangistau oblast.
According to official information of TECs of Astana city and Mangistau oblast (Ref: 180 of 18 July 2016, Ref: 647-647/14 of 12 July 2016) this statement on violations by multiple registration of voters on election day from the part of OSCE/ODIHR EOM is not confirmed.
45. Although, most OSCE/ODIHR EOM interlocutors did not express concerns regarding the accuracy of the voter lists, serious procedural irregularities on election day, including voters added to the voter lists without presenting documents foreseen by the law, underscore the importance of departing from the practice of election day registration, in line with previous OSCE/ODIHR recommendations (Footnote 37: Section 1.2.iv of the 2002 Venice Commission’s Code of Good Practice in Electoral Matters states that “there should be an administrative procedure – subject to judicial control – or a judicial procedure, allowing for the registration of a voter who was not registered; the registration should not take place at the polling station on election day”) (page 10).
The CEC RK standpoint: The Constitutional Act on Elections provides observers of foreign states, international organizations, representatives of foreign media with the right to observe all aspects of the elections. On election day, when confronted with such violations, the observers of the OSCE/ODIHR EOM could challenge them publicly or in written form. However, no application, complaint or appeal from any election process stakeholder at election of deputies of the Mazhilis of Parliament of the Republic of Kazakhstan, whether international or local observers, or media representatives, proxies of candidates, political party, have been filed by the CEC of the Republic of Kazakhstan.
These facts are not confirmed by oblast election commissions of the Republic of Kazakhstan, as well.
For the purposes of exercising by citizens of their election rights on election day, since 2015 a hot-link mechanism between members of precinct election commissions and employees of Citizen Service Centers (CSC). This allowed quickly check the fact of voter registration at the place of residence and add him/her on the voter list on election day directly.
All these additional measures are taken only to ensure that the electoral rights of citizens of the Republic of Kazakhstan Constitution are not violated.
In addition one of the international instruments, which the OSCE/ODIHR adheres to, namely paragraph 11 of General Comment No. 25, adopted by the UN Human Rights Committee in 1996, stipulates that “states must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed.” Therefore, denial of the practice of voter registration on election day is considered impossible, since it is needed to ensure that the voters entitled to vote were not deprived of this constitutional right.
VII. Candidate Registration
46. To participate in the elections political parties must be registered with the MoJ in accordance with the Law on Political Parties. To be registered, a political party must have at least 40,000 members, with at least 600 members per branches in every oblast and cities of Astana and Almaty (Footnote 38: Article 10.6 of the Law on Political Parties). A number of OSCE/ODIHR EOM interlocutors noted that these requirements do not encourage political pluralism (page 10).
The CEC RK standpoint: After introduction on 6 February 2009 of amendment to the Law on Political Parties the number of members required for registration of party was reduced from 50,000 to 40,000 persons, which significantly lowered the bar for registration of new party. The requirement on presence at least 40,000 members, with at least 600 members in the brunches in each oblast and cities of Astana and Almaty, is grounded by the fact that the parties must express at elections the political and social interests of wider sections of electorate. In the recent history of the country any political party in Kazakhstan claimed and claims to the nation-wide scale, therefore the requirement for a certain number of members, representing all regions, is justified.
It should be noted that the legal requirements for the minimum number of members for the official registration of political party are set in Sweden, Finland, Poland, Russia, Portugal. Today in a number of states of the USA the status of political party is recognized only for those public associations, in support of which a certain number of citizens’ signatures is collected: 1 % of the population or 60 thousand 836 persons in Missouri (6 million 083 thousand 672 persons live in the state) and 274 thousand 691 persons in Texas (in this state live 27 million 469 thousand 114 people).
47. The NSDP informed the OSCE/ODIHR EOM that it did not nominate more candidates as it could not afford the required deposit (page 11).
The CEC RK standpoint: Election deposit of party for each nominated candidate is KZT 342 885, that is 15 minimum wages. The size of deposit corresponds to the Recommendation Rec(2003)4 of the Committee of Ministers of the Council of Europe on common rules against corruption in the funding of political parties and electoral campaign of 8 April 2003. Thus, these recommendations extend application of the rules of funding political parties also to candidates, who nominated their candidacies at elections. Wherein, recommendations (articles 1, 10) propose to ensure equal opportunities and transparency of election by setting deposits in the reasonable amount.
In February 2016 the average monthly nominal wage in Kazakhstan was KZT 127 thousand (data of Committee on Statistics of the Ministry for National Economy of the Republic of Kazakhstan). The size of election deposit was 2.7 of average monthly salary of an ordinary Kazakhstani. As we can see, this amount is quite reasonable and affordable for political party, which is engaged in the struggle for mandates to the Mazhilis of Parliament.
48. Separate from the publication of the decision of the registration of the party lists, there is no obligation on the election administration to provide voters with the opportunity to familiarize themselves with candidates on the party lists. OSCE/ODIHR EOM observers found in practice that voters had little to no information about the candidates (Footnote 44: Paragraph 11 of the UN HRC General Comment 25 says that: “Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community) (page 11).
The CEC RK standpoint: The fact that some voters had no information about the candidates, listed on party lists, indicates the passivity of some voters, but not the lack of information about candidates.
The CEC of the Republic of Kazakhstan has registered lists of all six political parties, which included 234 candidates, as well as published them on its web-site, thus, provided all citizens with the opportunity to familiarize themselves with candidates on the party lists. Also, voters could familiarize with lists of candidates on the official web-sites of political parties (http://akzhol.kz/ru/news/show/8605/1/4, http://auyl.kz/ru/news/view/46 etc.). For example, data on each candidate, listed on the party list, was published on the official web-site of “Birlik” party (http://pp-birlik.kz/pages/nashi-kandidaty). In addition the CEC of the Republic of Kazakhstan conducted information campaign on the registration of party lists. Newspapers “Egemen Kazakhstan”, “Kazakhstanskaya Pravda” published the full party lists of candidates of parties “Nur Otan” (4 February 2016), Democratic Party of Kazakhstan “Ak Zhol” (6 February 2016), “Auyl” People’s Democratic Patriotic Party, Communist People’s Party of Kazakhstan (9 February 2016), Nation-wide Social-Democratic Party (12 February 2016), “Birlik” party (13 February 2016). Also, each voter could be familiarized with lists of candidates, each candidate, listed on party lists, on web-sites of news agencies BNews.kz, Tengrinews.kz, Dixinews.kz, in local newspapers otyrar.kz, diapason.kz, kzvesti.kz, as well as on many other information resources, Internet portals.
It is important to emphasize that the candidates included in the party lists, have actively participated in the pre-election campaign, met with voters and answered all their questions.
VIII. Election Campaign
49. Despite previous OSCE/ODIHR recommendations and contrary to international standards, the legal framework continues to contain restrictive provisions, such as the obligation to ask for permission to hold an event 10 days in advance rather than provide a notification (Footnote 47: 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.” Article 21 of the 1966 ICCPR guarantees the right of peaceful assembly without undue restrictions. Paragraph 12 of the 1996 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 the statement by the UN Special Rapporteur from 27 January 2015 on the right to freedom of peaceful assembly in Kazakhstan). The OSCE/ODIHR EOM learned of four requests to hold outdoor campaign events being rejected by local authorities in Astana (page 12).
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. We would like to note that restrictions are grounded and aimed at ensuring public order, public health and protection of the rights and freedoms of others.
Akimat of Astana city in the letter No. 104-12/3845 of 31 March 2016 confirms the fact of receiving of four applications from Astana brunch offices of PDPP “Auyl”, “Birlik” party, NSPD and city committee of CPPK to hold march during pre-election campaign. According to the content of applications the presumable number of participants of each march was from 500 to 1000 people. However, the applicants indicated the central streets of the city (Saryarka, Abay, Republic, Zhenis avenues, Seifullin, Zheltoksan, Beibitshilik streets), where on workdays the tough congestion. In this regard, the request of applicants was refused at the meeting in akimat and the explanations were given on this occasion.
50. The ruling party benefited from the dual role and position of its chairperson. 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 (Footnote 48: On 4 March during a meeting with women on the occasion of Women’s Day in Astana; on 9 March during the Republican Forum of the APK in Uralsk; on 10 March during a Republican Youth Forum in Aktobe; on 17 March during the Republican Forum of Workers’ Collectives in Pavlodar. On 1 March, the occasion of the newly-introduced “Day of Gratitude” was jointly celebrated with the 17th anniversary of Nur Otan in Astana) (pages 12-13).
The CEC RK standpoint: It should be noted that in those few cases, when the President of the Republic of Kazakhstan publicly endorsed “Nur Otan” party and its achievements he acted not in his official capacity but as a leader of the party. Mentioned by the OSCE/ODIHR EOM events were held within the campaigning, expenses for which were covered from the means of election fund of “Nur Otan” party, as it is required by law (see: clause 7 of Article 28, clause 1 of Article 34 of the Constitutional Act on Elections).
Foreign experience shows that participation of heads of states in campaigning in support of the political parties is quite common practice. For instance, in the election to the US Congress (a parliamentary body) in 2014 the US President Barack Obama began to call upon voters to vote for the Democratic Party already in January 2014. Campaign activity of the US President in support of the Democratic Party increased since September 2014. Numerous reports about this activity is posted on Internet resources of news agencies such as Reuters (26 January 2014), CNN (29 January 2014), newspaper New York Times (28 February 2014), The Huffington Post (30 April 2014), Newsmax (3 November 2014), The Telegraph (5 November 2014) and others. Moreover, the First Lady, the spouse of the President Michelle Obama joined the pre-election campaign, who called upon young African Americans and Hispanic voters to vote for democrats.
In this regard, we consider the critical observation of the OSCE/ODIHR EOM as incorrect.
51. Billboards, posters, and leaflets for Nur Otan were ubiquitous throughout the country, while those for Ak Zhol, Auyl, Birlik, CPPK and the NSDP were present to a lesser extent (Footnote 50: As of 11 March, Nur Otan displayed new campaign billboards and televised spots with the image of the President alongside the party slogans) (page 13).
The CEC RK standpoint: The election legislation guarantees equal opportunities to all political parties during the election campaign. The CEC of the Republic of Kazakhstan monitored compliance with this requirement of law. All expenses for placards, posters and leaflets are to be paid from the means of election funds of political parties. However, the organizational and financial capacities of each political party were different, which did not allow political parties to manufacture and post outdoor advertising propaganda in equal volumes. This is known as a legitimate expression of political competition in elections.
IX. Campaign Finance
52. The CEC is now obliged to publish campaign finance overviews twice a month in the campaign period (Footnote 53: 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). However, these only provided the total amounts received and spent per party. The lack of information on donors and how the funds were spent negatively impacted on voters’ ability to make an informed choice. The law is silent on the content or format of campaign finance reports and therefore there is no obligation on the CEC to fully disclose the sources of funding and detail the expenditures of the parties. This further limited the transparency of campaign finances (Footnote 55: Article 7.3 of the 2003 UNCAC states that, "Each State Party shall also consider taking appropriate legislative and administrative measures, … to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.” See also the 2011 OSCE/ODIHR and Venice Commission Guidelines on Political Party Regulation paras 201-206) (pages 13-14).
The CEC RK standpoint: As it was noted in paragraph 16 of the OSCE/ODIHR EOM Final Report “the CEC is now obliged to publish campaign finance overviews twice a month in the campaign period. For these elections, the CEC published two overviews on 3 and 16 March.”
The CEC of the Republic of Kazakhstan has entirely fulfilled the requirements of Article 12.5 of the Convention on Standards of Democratic Elections, Election Rights and Freedoms in the CIS member-states of 7 October 2002. This Article provides that candidates, political parties participating in elections should, with periodicity stipulated by the laws, submit to electoral bodies information on disbursements from election funds. These information was published in mass media, thus the openness and transparency of financing of the past campaign was ensured (see: newspapers “Egemen Kazakhstan”, “Kazakhstanskaya Pravda” of 5 April 2016).
Article 7.3 of the UN Convention against Corruption says that each State Party shall consider adopting appropriate legislative and administrative measures, consistent with this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties. This provision of the Convention is also respected in the Republic of Kazakhstan in full (clause 4 of Article 34 of the Constitutional Act on Elections, sub-clause 8-1 of clause 2 of the CEC RK Resolution of 7 August 1999 No. 19/222 “On approval of the Rules for spending means from election funds”).
The lack of information about sponsors, who have donated their means to election funds of political parties, could not negatively impact on voters’ ability to make an informed choice.
Thus, the document “Existing Commitments for Democratic Elections in the OSCE Participating States” (Warsaw, October 2003, page 68) says that “privacy of donors, especially private individuals, may be protected in published reports, but the reports should identify the amounts of each contribution made by such individuals, as well as other private interests (such as commercial entities or other private organizations).” In other words, the information about donors (sponsors) may not be published. As we can see, neither the CIS Convention nor the documents of the UN, the OSCE and the Council of Europe contain requirements on the mandatory publication of information about the sponsors.
In addition, information about the sponsors may not be disclosed without their prior written consent. This right of a sponsor as a human right cannot be violated by anyone. Meanwhile, according to sub-clause 6 of clause 2 of Article 18 of the Law of the Republic of Kazakhstan “On political parties” of 15 July 2002 “donations to a political party and its structural subdivisions from anonymous donators are not allowed.” It means that in case of revealing the illegal sources of donations the situation will be under control of tax and other state authorities of the Republic of Kazakhstan.
X. Media
A. Media Environment
53. The media environment has over recent years been characterized by a lack of independent sources and a restrictive legislative framework that have profoundly challenged freedom of expression and stifled public debate. The OSCE RFoM has on several occasions expressed concerns about media developments, including closures and suspensions of media outlets, disproportionate and excessive penalties for administrative violations, as well as prosecutions of journalists and independent voices, all of which has further limited pluralism of opinion (Footnote 56: See OSCE RFoM 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. On 22 February, the owner of private news agency KazTAG and the Board Chairman of the Union of Journalists of Kazakhstan was detained based on accusations of tax-fraud and embezzlement of state funds. More than 400 journalists supported the statement of Adil Soz, an Almaty-based foundation for freedom of speech, requesting the General Prosecutor to ensure a transparent investigation) (page 14).
The CEC RK standpoint: The legislation of the vast majority of countries, including the West European participating states of the OSCE, fixed the norms establishing different kinds of sanctions (from fines to imprisonment), aimed to protecting the rights of citizens against unreasonable accusations, libel and insults. These sanctions cannot be considered as measures to restrict the pluralism and freedom of speech. Responsibility comes not simply for unfounded accusations, insults, but only in cases where it creates the danger of violating the public order or substantial harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. These legislative norms in no way challenge the freedom of expression and stifle public debate.
There are numerous independent sources in the media environment of Kazakhstan and oppositional newspapers are spread like “Svoboda Slova”, “Dat”, “Zhas Alash” and others, which sharply criticize the government, present alternative information, thereby further facilitating the freedom of speech and public debate on topical socio-political issues, including electoral problems. Therefore, to talk about the lack of independent sources, newspapers in Kazakh media environment is incorrect.
As for the statements of the OSCE Representative on Freedom of the Media Dunja Mijatović, the CEC of the Republic of Kazakhstan in its previous Comment of 5 April 2016 (see: Comment of the Central Election Commission to the Statement of Preliminary Findings and Conclusions of International Mission of the OSCE/ODIHR, PA OSCE, PACE on election of early parliamentary election in the Republic of Kazakhstan, called on 20 March 2016) noted that all mentioned by her cases of detentions of journalists were not related to the election campaign of 20 March 2016.
With respect to the founder of the private news agency "KazTAG" and the chairman of the Union of Journalists of Kazakhstan S. Mataev it should be noted that according to the information of the General Prosecutor’s Office of the Republic of Kazakhstan (letter No. 2-010732-16-50347 of 25 July 2016), a criminal case was initiated on charges of evading tax payments and embezzlement of budget funds of the Committee for communication, informatisation and information and JSC "Kazakhtelecom" in a large scale. This case is considered in Esil district court of Astana city, the results of which will be announced later.
The fact that a number of journalists were released from custody (R. Balandin and M. Auezov), other journalists were discharged (Y. Kozlov) justifies that Kazakh courts administer justice in accordance with the law: on the contrary, such judicial decisions facilitated the “pluralism of opinion”.
54. The state exercises its influence over media through a widespread system of public tenders (goszakaz) administered by central and local authorities to implement state informational policy. 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 (page 14).
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/).
Thus, the Kazakh media have different sources of finance, where the considerable role plays the advertising market. And it creates the conditions for offering diverse viewpoints, including by means of television.
B. Legal Framework
55. While the Constitution guarantees freedom of expression and prohibits censorship, the legal framework for media contains a number of restrictive provisions. Contrary to the OSCE/ODIHR recommendations and calls from the OSCE RFoM, the Criminal Code retains penalties for defamation and insult and provides special protection for the president and his family and public officials. 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 and limits the constitutional guarantee of freedom of speech (Footnote 57: In 2015, as a potentially mitigating 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 14).
The CEC RK standpoint: Libel in the criminal legislation of Kazakhstan classified as private prosecution cases considered by a court upon a complaint of a victim, who provides the evidence. At the same time, dismissal of this category of criminal cases is permitted in case of the reconciliation of the parties. Direct legal guarantees of freedom of speech, freedom of expression can be seen in the notes to Articles 373, 375, 376, 378 of the Criminal Code of the Republic of Kazakhstan, which 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.
Incitement of social, national, tribal, racial, class or religious enmity refers to extremist crimes (sub-clause 39 of Article 3 of the Criminal Code). The maximum penalty of 20 years for incitement of enmity 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). It should be noted that the criminal prosecution for intentional incitement to enmity is not directed at suppressing the freedom of the media, but at the fight against enmity speech, encouraging the population to riot and violence.
Criminal liability for the spreading of knowingly false information (see: Article 274 of the Criminal Code) is not aimed at limiting of freedom of speech, since the subject of this crime could be any physical person, who spread the intentionally false information. Also this article does not provide for the possibility of committing it only through the media, but by spreading it in any other way. 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 combat situation, in wartime, during a public speaking. In other words, Article 274 of the Criminal Code is also not aimed at the suppression of freedom of speech.
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 a 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 election 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 committed offense.
56. The 2012 Law on Broadcasting sets out a general legal framework in which the key role is held by the government through an authorized body entrusted with the implementation of the state’s informational policy. This Committee for Communication, Informatization and Information (Media Committee) under the Ministry of Investment and Development is responsible for overseeing broadcast media and granting broadcasting licenses. While the law provides for broad discretionary powers of the Media Committee, it contains very few specific procedures for their execution and does not provide for public accountability of the oversight body (pages 14-15).
The CEC RK standpoint: The Committee for Communication, Informatization and Information under the Ministry of Investment and Development of the Republic of Kazakhstan implements the state policy in the field of broadcasting. It carries out tenders for allocation of radio frequencies, registration of TV and radio channels, licensing, development of qualification requirements to broadcasting operators, monitoring of compliance with the technical parameters of the quality of television and radio broadcasting and national broadcasting standards (see: paragraph 17 of the Statute of the Committee, approved by order of the Minister for Investment and Development of the Republic of Kazakhstan of 14 October 2014 No. 62).
The Committee does not perform “overseeing (supervision, control of) broadcast media”. Also, the Committee does not have “discretionary powers” (“discretionary” – available to be used when and how you decide).
Specific procedures for execution of public authority in the field of broadcasting are spelled out in detail in the Rules for allocation of frequency bands, radio frequencies for broadcasting purposes, approved by the order of the Minister for Investment and Development of the Republic of Kazakhstan of 24 April 2015. The decision on allocation of radio frequencies is taken by competent body – the Ministry of Investment and Development – upon recommendation submitted by the Commission for Broadcasting Development, which is composed of members of Parliament, representatives of state bodies, non-governmental organizations, the National Chamber of Entrepreneurs and the media. All decisions and conclusions are subject to mandatory publication in the official media. Thus, the public accountability of the competent body is provided.
In addition, public councils, consisting of the public representatives, operate under all central government executive bodies. According to Article 23 of the Law of the Republic of Kazakhstan of 2 November 2015 “On Public Councils” for the purposes of increasing the public accountability of state authorities during their decision-making the first heads of state authorities should bring to the attention of the public the reports on the work of their agencies.
As we can see, the legislation of Kazakhstan regulates all specific procedures for the execution of state broadcasting policy and provides for public accountability of the competent body.
57. A 2009 amendment to the Mass Media Law classified websites (including blogs, chat rooms, and web forums) as regular mass media outlets, thus rendering them subject to media-related regulations and sanctions. Further, a 2014 amendment to the Law on Communications allows the prosecutor to temporarily shut down websites if they distribute information ‘harmful’ to individuals, society and the state, or contain calls for ‘extremist’ activities (Footnote 58: In recent months, several trials have taken place and bloggers and journalists have been convicted on charges of ‘incitement of interethnic discord’ or propagating ‘separatism’ online and in social media). Furthermore, the Election Law requires media to abstain from distributing information “discrediting the honor, dignity and professional reputation of a candidate” which makes any criticism of a candidate by other contestants or the media difficult (page 15).
The CEC RK standpoint: We need to clarify that it is necessary to distinguish between the telecommunication networks, communication means and services, and Internet resources. Of them only Internet resources are covered by definition of media and even not all of them. The Ministry of Information and Communication of the Republic of Kazakhstan in its letter of 15 July 2016 No. 03-14/3t-l-73 noted that “not all Internet resources are related to mass media”, but only those, in which respect “the owner has decided to classify its Internet resource to mass media as a network edition”.
Temporary suspension of the operation of networks, communication means and services of a specific operator is used only in exceptional cases as a measure aimed to prevention of their use in criminal purposes, affecting individuals, society and the state. In addition, in accordance to Article 41-1 of the Law of the Republic of Kazakhstan of 5 July 2004 “On Communication” the prosecutor cannot “temporarily shut down websites”. This is the prerogative of the competent body in the field of communication, which can do it only by the order of the General Prosecutor or his/her deputy in order to eliminate violation. This measure may be applied in the case of the spreading information, which violates the election legislation, contains appeals for extremist and terrorist activities, mass riots, participation in mass public events, held with violation of the procedure, established by the legislation. After the removal of such information the operation of Internet resources is renewed. In addition, according to the Media Law and the Civil Procedure Code the suspension of the activities of Internet resources or restriction of access to them shall be permitted only through a judicial procedure but not by the order of the public prosecutor or the decision of the competent body.
Thus, amendment of 2014 to the Law on Communications does not violate the freedom of expression in the media, but serves to the interests of society and the state as a protection against the use of the Internet for criminal purposes or for the purposes of violation of the stability of the public order.
Furthermore, clause 7 of Article 27 of the Constitutional Act on Elections requires that the media has to refrain from spreading not the information, “discrediting the honor, dignity and business reputation of a candidate”, but the spreading of information, deliberately discrediting the honor, dignity and business reputation. If a person spreads false information, but is honestly mistaken in its falsity, then according to Kazakhstan legislation he/she cannot be prosecuted in any way. Thus, this legal provision is used in the interests of ensuring the protection of honor and dignity of a human being and a citizen, but not for limiting the freedom of speech.
58. The CEC was responsible for overseeing media compliance and performed this task in co-operation with the Media Committee. Its analytical department monitored the quantitative coverage of contesting parties across traditional media outlets (47 television channels, 12 radio stations and 237 newspapers and magazines) and numerous online sources (162 political and social websites). The monitoring did not carry out analysis of the content or the tone of the coverage. As publicly reported by the CEC prior to election day, no serious media violations were found. However, there was no report issued for the last week of the campaign, nor was there a final, summarizing report (Footnote 61: The CEC published two press releases concerning media monitoring findings – on 3 March (covering the period until 2 March) and on 16 March (until 14 March) (page 15).
The CEC RK standpoint: On 16 March 2016 the CEC of the Republic of Kazakhstan has published preliminary results of media monitoring on covering the election process and pre-election campaign of political parties in 48 nation-wide newspapers, 15 magazines, 12 radio channels, 174 regional newspapers, 31 regional TV channels, 162 most popular socio-political Internet resources.
Because at the moment of completion of pre-election campaign n 18 March 2016 the results of media monitoring on covering the election process and pre-election campaign of political parties did not differ from the data as of 16 March 2016 as well as no serious violations from the part of media were revealed, there was no need to duplicate the results of monitoring.
C. Media Monitoring Findings
59. The President was extensively covered in his official capacity, thus benefiting the ruling party. extensive reporting of the President’s activities, including regular work and ceremonial occasions, dominated most of the media. Altogether, the amount of coverage received by the President on each channel was approximately three times as much as the coverage provided to each contesting party. The state-funded broadcasters dedicated between 27 and 43 per cent of their political prime time news to the President (Footnote 65: The OSCE/ODIHR EOM learned that the debate was organized in co-operation with the SCK, while the body has no formal role in the process). Most of the other monitored media presented the campaign in a cautious way, with an overwhelming portion of the coverage dedicated to official bodies, including the President, rather than the contesting parties. This was visible in virtually all online media analysed by the OSCE/ODIHR EOM, where the share of authorities-related information was around 90 per cent, with the President presented most positively (Footnote 70: In www.zakon.kz it was 96 per cent, in www.365.info.kz 92 per cent, in www.nur.kz 91 per cent, and in www.tengrinews.kz 90 per cent) (pages 16, 17).
The CEC RK standpoint: To say that during the election campaign the President and the official bodies have been given an advantage in the media coverage is not quite correct.
The coverage of the President’s activity in his official capacity is not pre-election campaign. It is necessary to distinguish between a political campaign and the daily work of the President and government. It is not correct to compare the President’s activity and campaigning of each of 6 political parties, participated in the electoral race: state-funded broadcasters did not dedicate, as the OSCE/ODIRH EOM notes, but covered in the main news the events taking place in the country. In parallel with election the media covered information on citizens’ life as well as the news of political, economic and social nature.
Moreover, if we compare the official statistical data, then in the course of news programs that did not require funding from the election funds, the media published 1,924 information materials on the activities of the "Nur Otan" party, 1,575 materials on the CPPK activities, 1,661 materials on the activities of DPK "Ak Zhol", 1,471 materials on the activities of "Birlik" party, 1,531 materials on the activities of the Nation-Wide Social-Democratic Party, 1,504 materials on the activities of “Auyl” party. As we can see, the coverage of the activities of all six political parties was almost equal.
60. The OSCE/ODIHR EOM learned about the Media Plan provided by the Media Committee to major media on a regular basis with a list of important political events (Footnote 63: The OSCE/ODIHR EOM was informed by some media outlets that the Media Plan served as a guideline and framework for the coverage of political events and was prepared in conjunction with the Service of the Central Communication by the President (SCK), a body under the control of the Presidential Administration). Such practice raises doubts about the editorial independence of state-funded media and was manifested by the very similar manner in which they presented political and campaign related events (page 16).
The CEC RK standpoint: Media plan was served mostly as a time-table for the coverage of the main political events during election campaign. Media plan cannot affect the editorial independence of media, since it was not a legally binding document. Therefore, saying that the independence of editorial policy of state-funded media raised doubts concerning independency of these media is incorrect.
61. The formalistic format of the debate did not provide for an interactive exchange of views which reduced its informational value. The lack of opportunity to address questions and comments to decision-makers, including to the ruling party on its performance while in office, contributed to the general absence of critical and analytical media reporting (page 16).
The CEC RK standpoint: The CEC of the Republic of Kazakhstan by Resolution of 14 March 2016 No. 27/122 approved the Rules for holding political debates, which was brought to the attention of the media. On 16 March 2016 the CEC of the Republic of Kazakhstan organized political debate of parties. It was attended by representatives of all six parties.
The debates were held in three rounds. The first two rounds consisted of two sub-rounds. According to sub-clause 2 of clause 4 of the Rules in the second round the participants of political debates exchanged questions and answers on the topics: "The new reality of the global economy: problems and prospects" and exchanged with questions and answers on the given subject, delivered the speech on the topic: "Infrastructure, Transportation, Logistics: modernization in modern conditions".
During the televised political debates, the representatives of parties within the proposed by the Rules time-frame in an interactive mode presented pre-election platform of their party, appealed to voters with a call to take part in the election of 20 March 2016, set out their vision of problems, offered their approaches and ways and attempts to solve the existing problems in the country. Therefore, to call it as "formalistic format" is incorrect.
It should be noted that participation in the debate was voluntary. In addition, legislation does not forbid holding such debates by political parties in other formats. They had the right and opportunity to address their questions to this or that parties. No one has restricted the right of parties to cooperation with the media and voters. They could organize and conduct debates without any restriction.
At the same time, the speeches of all participants of political debates were broadcasted by various media in air as well as were published in newspapers, magazines and on the official Internet resources of political parties, where each voter could personally write their comments and address them to each political party.
The opportunity to address their questions and comments to decision-makers, including the ruling party, was available for voters also prior to and after holding the debates. Each voter could apply or send his/her question or comment directly to headquarters of a political party or visit any public reception of any of 6 parties. Any complaint concerning conduct of political debates to the CEC of the Republic of Kazakhstan, prosecutor offices and the courts have not been submitted.
As we can see, debates were not formalistic, and critical and analytical reporting of media was present throughout holding of political debates.
62. 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 69: 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 started to air it during the prime time from 15 March. 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 channel was in compliance with the legal requirements. OSCE/ODIHR EOM monitoring findings nevertheless indicated that the coverage on state-funded channels improved as of 10 March for a week, but were again distorted in the last two days of the campaign (page 17).
The CEC RK standpoint: The CEC of the Republic of Kazakhstan for the purposes of ensuring full coverage of the pre-election campaign of Nation-Wide Social-Democratic Party has applied with a letter to JSC “Khabar Agency” (No. OSK-U/130/3T of 12 March 2016). From the response of 14 March 2016 No 02-08/574 it was followed that a prerequisite for the airing of a video spot was to provide a text version of the video content. After the Nation-Wide Social-Democratic Party provided the text version of the video spot, the members of the working group of "Agency "Khabar" identified various discrepancies in the text on paper and on video spot. Moreover, 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 materials of the Nation-Wide Social-Democratic Party were not caused.
On 4 March 2016 the CEC of the Republic of Kazakhstan received appeal from the Nation-Wide Social-Democratic Party. In the appeal the party expressed its dissatisfaction with regard to the fact that the media used different tricks aimed at minimizing the recognition of Nation-Wide Social-Democratic Party 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 party, to the head of the election headquarters, member of the Presidium of Nation-Wide Social-Democratic Party Mr. 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 Nation-Wide Social-Democratic Party, reflected in a letter addressed to the CEC of the Republic of Kazakhstan.
It is not clear for the CEC of the Republic of Kazakhstan, what kind of distortion in the covering of the Nation-Wide Social-Democratic Party the OSCE/ODIHR EOM is talking about, and on what channels it was admitted in the last two days of the campaign? All parties were provided with equal opportunity and equal rights to participate in the election campaign. Also, no complaint from the representatives of the Nation-Wide Social-Democratic Party concerning distortions of the election campaign on state-owned TV channels has been received.
XI. Participation of National Minorities
63. Election, voter education and campaign materials were provided in Kazakh and Russian languages, but were not observed by the OSCE/ODIHR EOM in minority languages (page 17).
The CEC RK standpoint: In the Republic of Kazakhstan all citizens speak and are fluent in Kazakh or Russian languages. According to the Article 7 of the Constitution of the Republic of Kazakhstan “the state language of the Republic of Kazakhstan is Kazakh language. In the state organizations and local self-government bodies the Russian language is officially used on equal grounds along with Kazakh language.” Therefore the training materials were provided mostly in these languages.
However, in the areas, where national minorities reside compactly, the pre-election campaign of political parties, as well as voter education were conducted in their languages.
XII. Complaints and Appeals
64. The Election Law does not set out procedures for the consideration of complaints by the election commissions (page 19).
The CEC RK standpoint: Procedures for the consideration of complaints by the election commissions is set out in the Constitutional Act on Elections. For example, sub-clause 5 of Article 12, sub-clause 3 of Article 14, sub-clause 3 of Article 16, sub-clause 8 of Article 18 set out the hierarchy of consideration by the higher election commissions of complaints and appeals against decisions, actions (inaction) of the lower-level election commissions. Clause 9 of Article 20 set out the deadlines for appealing actions of election commissions to the higher election commissions and courts. Articles 20-1, 20-2, 31 of the Constitutional Act on Elections stipulate the powers of observers and proxies to appeal against decisions, actions (inaction) of election commissions. Articles 48 and 49 of the Constitutional Act on Elections regulate the activities of law-enforcement bodies, courts and prosecutors upon requests of election commissions. Articles 59, 73, 89, 104, 118 of the Constitutional Act on Elections determine the authorized election commissions and court, where the decisions of the corresponding election commissions on de-registration of candidates to President, deputies of Parliament, maslikhats, to members of other local self-government bodies can be challenged.
The general questions on design, registering and handling of complaints are regulated by the Law of the Republic of Kazakhstan of 12 January 2007 "On the procedure for consideration of appeals of physical persons and legal entities."
65. Neither the CEC, nor the Supreme Court or the General Prosecutor’s Office, provided the OSCE/ODIHR EOM with information on the number and nature of complaints received regarding the Maslikhat elections, including those related to the formation or composition of election commissions. As a result, the OSCE/ODIHR EOM was unable to assess the impact the alleged violations had on the parliamentary elections, could not observe the handling of these complaints or evaluate the effectiveness of their resolution (page 19).
The CEC RK standpoint: The statement of the OSCE/ODIHR EOM that the CEC of the Republic of Kazakhstan did not provide information on the number and nature of complaints received regarding the maslikhats election does not correspond to reality. The CEC of the Republic of Kazakhstan has promptly provided information on complaints regarding maslikhats election personally to Legal Analyst of the OSCE/ODIHR EOM Meaghan Fitzgerald.
In the period from 20 January to 29 March 2016 the CEC of the Republic of Kazakhstan received 116 application related to election campaign for election of deputies of maslikhats of the Republic of Kazakhstan, including: 1) on explanation the provision of election legislation - 31; 2) on providing information about election commissions, candidates, observers, etc. - 12; 3) proposals on the issues of preparation and conduct of election - 4; 4) on ensuring equal access for persons with disabilities - 1; 5) on inability to take part in election - 2; 6) application, which is not related to election process (social, domestic and other issues) - 1; 7) complaint on violation of holding pre-election campaign by a candidate to deputy - 1; 8) complaints against decisions, actions (inaction) of election commissions – 26; 9) complaints against decisions, actions (inaction) of state authorities and their officials – 2; 10) on disagreement with registration of candidates to deputies – 14; 11) applications on inaccuracy of data in declarations on income of candidates to deputies and their spouses and on restoration of the right to be elected – 22 (sent to the corresponding territorial election commissions for consideration).
Moreover, this information since 1 April 2016 is being posted on the website of the CEC of the Republic of Kazakhstan in the section “Consideration of appeals of physical persons and legal entities” (http://election.gov.kz).
66. On election day and the days immediately following, the CEC received 35 official letters regarding the voting, counting and tabulation process, 11 complaints were filed with courts throughout the country and prosecutors’ offices received 21 allegations of election violations. In only one case did the courts or prosecutors find factual basis for the complaint and decide in favour of the complainant. The transparency of the dispute resolution process and observer access to detailed information on the number, nature and resolution of complaints significantly decreased after election day. Despite repeated requests, the CEC did not provide the OSCE/ODIHR EOM with information on the nature of complaints received on election day or details on the resolution of these matters. NSDP copied the OSCE/ODIHR EOM on 51 complaints submitted to the CEC and the Prosecutor General’s Office; allegations included inter alia multiple voting, allowing voters to vote without proper identification and obstruction of observation. The CEC did not publish any information on the resolution of election day complaints either (page 19).
The CEC RK standpoint: The CEC of the Republic of Kazakhstan provided comprehensive information to the OSCE/ODIHR EOM regarding 35 appeals, including 6 appeals on violation of the procedure of voting, which were sent to the General Prosecutor Office of the Republic of Kazakhstan for examination. On 10 appeals the applicants were provided with answers, in particular, on the legality of the provision of assistance to the older voters in the voting, as well as on the lack of facts subject to examination. The remaining 19 appeals were sent to territorial election commissions for examination of the information set forth in appeals.
However, it should be noted that on election day the courts received 7 complaints on violation of election legislation by precinct election commissions, but not 11, as the OSCE/ODIHR EOM stated. As a result, 1 application was refused in consideration; 4 applications were returned; on 1 - the consideration was stopped; and on 1 application was dismissed.
Answers with explanations were sent to all applicants. Complaints of the Nation-Wide Social-Democratic Party were accepted for examination but none of them has been confirmed.
XIII. Election Observation
67. The Election Law explicitly gives the right to international observers to observe the entire electoral process, however this right is not guaranteed for citizen observers. Further, the law does not explicitly oblige TECs and RECs to provide neither the international nor the citizen observers, with TEC or REC results protocols with detailed summary sheets necessary to effectively scrutinize the tabulation (pages 19-20).
The CEC RK standpoint: All rights of observers of political parties, other public associations, non-profit organizations, which cover all aspects of election process, including presence at the sessions of election commissions, appealing their decisions, actions (inaction), bringing attention of the members of election commissions to the facts of violation of election legislations and others, are assigned in the Constitutional Act on Elections in the clause 2 of Article 20-1.
According to sub-clause 11 of clause 2 of Article 20-1 of the Constitutional Act on Elections observers have the right to be familiarized with protocols of PEC on the results of voting. Clauses 8-1, 8-2 of Article 43 of the Constitutional Act on Elections oblige district election commissions to post copies of protocols on election results and detailed summary sheets and clause 6 of Article 20 of this law oblige the election commissions of all levels to create conditions for free familiarization of all persons with their decisions (including summary sheets on results of voting), post them in the public communication networks.
As we can see, the Constitutional Act on Elections provides to local observers the right to observe the entire electoral process as well as request the TECs and RECs to provide result protocols and summary sheets on results of voting.
The OSCE/ODIHR EOM has not submitted to the CEC of the Republic of Kazakhstan and has not provided in the Final Report the clear and convincing facts of evidence of the mentioned violations.
XIV. Election Day
68. On election day, serious procedural errors and irregularities were noted during voting, counting and tabulation. Negative assessments of tabulation were often linked to procedural violations. Transparency was limited, as IEOM observers were often prevented from following the process (pages 1, 3, 20).
The CEC RK standpoint: The OSCE/ODIHR EOM saying about serious procedural errors and irregularities during voting, counting and tabulation, unfortunately, does not provide any specific case of such errors and irregularities as well as evidence of their commitment.
Observers of other international organizations, foreign states, representatives of foreign media did not indicate to the mass violations at polling stations on election day. On the contrary, they stated that the process of voting, counting and tabulation 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" (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/ODIHR EOM, noted that “some violations of the election legislation were not of systematic and mass character and did not affect the election results. On the revealed infringements the CIS Mission informed the Central Election Commission.” Mission of observers from Shanghai Cooperation Organization, which visited 65 polling stations in Astana city and Akmola, Karagandy and Pavlodar oblasts, pointed out that “during the vote count on election day the representatives of Mission violations have not revealed."
Moreover, none of 16,836 observers of political parties, 6,385 observers of other public associations, 231 observers of non-profit organizations, 18,182 proxies, 587 representatives of Kazakh mass media have filled complaints that any observer was prevented to monitor the procedures of the day of election. It was not confirmed none of 646 observers of other international organizations, foreign states, representatives of foreign media.
The actions of observers and other persons present in the polling day during the vote count are puzzling. Why in any polling station did not they inform the PEC chairpersons about those violations, which were mentioned in the report? (sub-clause 5 of clause 6 of Article 20-2 of the Constitutional Act on Elections).
As the CEC of the Republic of Kazakhstan has already mentioned, it is established in the Code of Conduct for ODIHR observers that “all conclusions of observers must be based on their personal observations or on clear and convincing facts of evidence.”
The OSCE/ODIHR EOM has not submitted to the CEC of the Republic of Kazakhstan and has not provided in the Final Report the clear and convincing facts of evidence of the mentioned violations.
69. The voting process was assessed negatively in eight per cent of observations, which indicates significant procedural shortcomings and noted violations of the process. Observers noted indications of ballot box stuffing in 31 cases, series of seemingly identical signatures on the voter lists (210 cases), group voting (80 cases), proxy voting (48 cases), and improperly sealed ballot boxes (67 cases). Following the opening of the ballot boxes by the PECs, IEOM observers noted eleven cases of ballot box stuffing. During counting, PECs largely failed to follow the reconciliation procedures that would ensure consistency and reliability of the count. Frequently, invalid ballots were either not determined reasonably (28 per cent) or consistently (26 per cent), and contested ballots were not decided by voting. In a vast majority of observations, PECs did not use the control equations to cross-check the figures and had difficulties completing protocols (pages 20, 21).
The CEC RK standpoint: In compliance with sub-clause 5 of clause 3 of Article 20-1 of the Constitutional Act on Elections observers, proxies and representatives of media should base their observations on documented, actual and verifiable facts. The similar requirements are enshrined in paragraph 4 of the Code of Conduct for ODIHR observers: “Observers will base all conclusions on their personal observations or on clear and convincing facts of evidence.”
In their letters all oblast, cities of Astana and Almaty election commissions did not confirm any fact of ballot box stuffing, series of identical signatures on the voter lists, group voting, proxy voting. For example, in the letter of the West-Kazakhstan oblast election commission (No. 107 of 11 July 2016) it was reported that application of dirty electoral technologies on the day of voting was not observed, the facts of ballot box stuffing, voting under pressure at polling station have not been recorded. Zhambyl oblast election commission in its letter (No. 44 of 22 July 2016) reported that the facts of ballot box stuffing did not take place. The North-Kazakhstan oblast election commission (letter No. 180 of 20 July 2016) reported that nowhere the cases of ballot box stuffing were recorded; the cases of multiple voting, identical signatures on the voter lists and voting under pressure were not reported. In the letter of Kyzylorda oblast election commission (No. 01-11/71-262 of 22 July 2016) it is reported about lack of any applications or complaints regarding ballot-box stuffing at polling stations, identical signatures on the voter lists, proxy voting as well as improperly sealed ballot boxes. Almost all election commissions reported in their letters that the actions outlined in the Final report of the OSCE/ODIHR EOM have not been confirmed.
Moreover, all the ballot boxes were sealed by specially made seals in front of observers, both local and international, as well as in the presence of the representatives of political parties. Therefore, no complaints on these issues in the election commissions have been filed on election day.
The critical observations about the lack of consistency and reliability of the vote count, and fact that invalid ballots were not determined reasonably have not been confirmed as well. The proof is the letters of the oblast election commissions, which have not received any complaints in relation to checks on invalid ballots. All precinct election commissions followed the reconciliation procedures and the data was made public, the general number of voters and the number of voted were announced, the cross-checking was carried out. On a mandatory basis the data was recorded in the protocols and was declared.
These negative assessments of the OSCE/ODIHR EOM on procedural shortcomings on election day have not been documented and they are unproven in character.
70. The CEC announced voter turnout at two-hour intervals culminating in a final figure of 77.1 per cent. The CEC turnout figures reported during election day show that many oblasts processed over 100 voters per hour in each polling station in the oblast within a given time period (Footnote 78: Turnout in Almaty oblast increased from 23.2 to 57.6 per cent between 10:00 and 12:00; an increase of 34.4 percentage points. South Kazakhstan at 12:00 had 33 per cent turnout and at 14:00 it had risen to 68.8 per cent, an increase of 35.8 per centage points in two hours. During this period, 208 voters voted per hour in South Kazakhstan oblast or 3.5 voters per minute. As an example, Atyrau oblast, with total number of voters around 300.000 who voted at 234 polling stations, had a turnout of 11.8 per cent at 10:00 and 45.2 per cent at 12:00, an increase of 33.2 percentage points; in this period, 100,688 voters reportedly voted in Atyrau oblast, equivalent to an average of 215 voters per hour in each polling station making it necessary for the polling staff to process each voter in some 17 seconds. There is a very large discrepancy between these numbers and number of voters who voted during IEOM observers presence at the visited polling stations). This raises significant concerns with regard to the turnout reported (page 21).
The CEC RK standpoint: It is not clear for the CEC of the Republic of Kazakhstan how did the OSCE/ODIHR EOM observers analyze the voter turnout compared to the number of signatures on the voter lists.
If we take into account the fact that 100 voters voted for one hour, then, the simple arithmetic shows that on average each member of the election commission received 20 voters per hour, that is, it was spent about 3 minutes per one voter. Such a situation can be considered as normal.
Even if to be guided by calculations of the OSCE/ODIHR EOM in Atyrau oblast, where on average 215 voters voted at each polling station per hour, and the five members of precinct election commission issued ballots, it turns out that on average one member of the commission served one voter for about 1.4 minutes instead of 17 seconds, as it is stated by the OSCE/ODIHR EOM.
In addition, the oblast electoral commissions carried out an inspection on the voter turnout and have not revealed any discrepancies in this regard. Voter turnout was fully consistent with the number of signatures on the voter lists.
Observers of the OSCE/ODIHR EOM conducted their monitoring at every polling station on average for 20-25 minutes. The more accurate information was owned by domestic observers, proxies of all competing with each other political parties, who were present at each polling station throughout the election day, and all of them, in total they represented 42,221 persons, but no complaints from them concerning accounting of voter turnout had been received.
In addition, at a press conference held on 21 March 2016, the international observer from Missions of the CIS, SCO, CCTS, TurkPA, OIC and other independent observers from foreign states noted the high voter turnout, good organization and the legitimacy of election.
71. Many observer teams were not allowed to fully scrutinize the voter lists. In the instances when they were allowed to do so, observers noted serious procedural irregularities. In 45 cases, PEC members pre-signed the voter lists without issuing ballots to voters or voters signed the voter lists only once when more than one ballot was issued for parliamentary and local elections (Footnote 77: Paragraph 11 of the 1996 UNHRC General Comment No. 25 to the ICCPR states that any abusive interference with registration or voting should be prohibited by penal law and those laws should be strictly enforced. Some 45 observations were reported by observers mostly from Almaty City, Astana City, Akmola, Atyrau, East Kazakhstan, South Kazakhstan, and West Kazakhstan oblasts). IEOM observers also noted a series of identical signatures, proxy voting and a relatively low number of signatures on the lists as compared to the turnout figures provided to them by the PECs (page 21).
The CEC RK standpoint: The Constitutional Act on Elections provides observers of foreign states, international organizations, representatives of foreign media with the right to monitor all aspects of election. On election day, when confronted with such violation, observers of the OSCE/ODIHR EOM could publicly or in writing make statement about it. However, no application, complaint or appeal on election day and after it from any stakeholder of election process for the election of deputies of the Mazhilis of Parliament of the Republic of Kazakhstan, whether he/she is an international observer, a domestic observer or a representative of media, a proxy of candidate or political party, have been received by the CEC of the Republic of Kazakhstan.
These facts are not confirmed by oblast election commissions. In the letter of Kyzylorda oblast election commission (No. 01-11/71-262 of 22 July 2016) it is noted that all observers, who monitored election on the day of voting, were provided with full opportunity to observe all procedures at all stages of election process. Moreover, chairpersons of election commissions answered to all questions of observers and explained to the observers of the OSCE/ODIHR EOM all actions done by them. Voter lists were provided for the review to each observer, who asked to watch them. Kostanay oblast election commission in its letter (No. 106 of 11 July 2016) reported that no obstacles were put to observers to monitor the procedures of the day of voting at any polling station.
Pavlodar oblast election commission states (letter No. 178 of 11 July 2016) that all observers passed registration at each polling station, put signatures in registers, and at the same time noted the high level of organization of election, and the OSCE observers themselves reported about coordinated work of the members of election commissions. While issuing ballots, all voters put their signatures on voters’ lists. No violation in the actions of election commissions have been revealed or registered.
Moreover, the Criminal Code of the Republic of Kazakhstan of 3 July 2014 in Article 150 notes that “impeding free exercise by a citizen of his/her electoral rights or the right to participate in referendum as well as illegal interference in the work of election commissions or referendum commissions, impeding voting, execution of duties, associated with registration of a candidate, party lists, vote count and tabulation of election results at election or referendum shall be punished by a fine of up to one hundred monthly calculation indices, or corrective labor at the same rate, or engagement in public works for a period up to one hundred and twenty hours.” As we can see, violations relating to interference in the procedures of registration and voting are prohibited by the criminal law of the Republic of Kazakhstan.
The OSCE/ODIHR EOM has not submitted to the CEC of the Republic of Kazakhstan and has not provided in the Final Report the clear and convincing facts of evidence of the mentioned violations.
72. One third of the PECs did not count and announce the number of ballots received and in six cases ballot boxes were not properly sealed. While unauthorized people were noted in 20 cases, observers reported interference in one of them (page 20).
73. Observers reported that some important procedures were not always followed. These included: not signing ballots before they were issued to voters (8 per cent), rendering them invalid when counted; voters not marking their ballots in secrecy or their choice being visible when casting the ballot (6 per cent); PEC not checking voters’ IDs (4 per cent) and allowing voters to vote without proper IDs (2 per cent). Contrary to the law, in 62 polling stations observed, PECs accepted requests for mobile voting after the legal deadline (page 20).
74. Unauthorized persons, including police, local authorities and other unidentified people, were present in 10 per cent of polling stations observed, and in 24 cases they were directing the PECs or interfering with their work (pages 20-21).
75. In the majority of counts, observers linked significant procedural errors or omissions either to poor understanding of the procedures by the PECs (in about one third of observations) or to deliberate falsification (one in ten of the counts observed). With an array of irregularities observed, an honest count required by paragraph 7.4 of the 1990 OSCE Copenhagen Document could not be safeguarded (Footnote 79: Paragraph 7.4 of the 1990 OSCE Copenhagen Document commits participating States to “ensure that votes are cast by secret ballot or by equivalent free voting procedure, and that they are counted and reported honestly with the official results made public”) (page 21).
76. IEOM observers noted that important procedures during the closing and counting were largely not followed by the PECs. In more than half of the counts observed, the numbers of voters in the voter lists, signatures on the voter list, ballot papers issued to voters, and absentee voters were not announced. Additionally, PECs did not cancel unused ballots in nearly one third of counts observed and did not announce the number of unused ballots in around half of the counts observed (page 21).
77. Observers were prevented from seeing the voters’ marks on the ballots in almost half of the counts observed and in the vast majority of cases PECs did not announce the choice of the voter as expressed on each ballot. In addition, in approximately one third of observations a copy of the protocol was not posted in the PEC premises, as required by law (pages 21-22).
The CEC RK standpoint on items 72, 73, 74, 75, 76, 77: The CEC of the Republic of Kazakhstan cannot comment the number of noted procedural errors, revealed by the OSCE/ODIHR EOM, since the Mission did not provide the relevant data on the numbers of polling stations and evidence of violations, which have taken place. In addition, the number of polling station and region, in which by the OSCE/ODIHR EOM statement the pronounced, deliberate falsification of the results of vote count has occurred, is not indicated.
According to Article 20-2 of the Constitutional Act on Elections international observers were eligible to inform members of election commissions about their observations, revealed violations, provide recommendations, make public statements. These rights have been brought by the CEC of the Republic of Kazakhstan to attention of observes of the OSCE/ODIHR EOM orally (at briefings) and in writing (via methodical materials) in English. A similar right is contained in the Code of Conduct for ODIHR observers, which states that “observers may raise questions with election officials and bring irregularities to their attention." However, none of the observers of the OSCE/ODIHR EOM used this right.
Meanwhile, in the letters of all territorial election commissions of the country it was said that on election day these commissions have not received any reports on various violations in the process of voting and vote counting. Also, no complaints on these and other procedures of voting have been received by the CEC of the Republic of Kazakhstan and the prosecutor's offices, courts and from other stakeholders of election process.
As example, Pavlodar oblast election commission in its letter (No. 178 of 11 July 2016) reports that on the voting day 36 observers of foreign states and international organizations, including 14 observers of the OSCE/ODIHR EOM, were present in the oblast. However, no comments on the process of voting, counting of votes was suggested by any of observer of the OSCE/ODIHR EOM. Appeals and application from anyone were not received by election commissions of the oblast. The same is reported by the North-Kazakhstan oblast election commission (letter No. 180 of 20 July 2016): “Written applications, statements of violations, complaints and appeals, as well as any other comments the election commissions of the oblast have not received."
West-Kazakhstan oblast election commission it its letter (No. 107 of 11 July 2016) informed that the procedure of vote count was held in compliance with the election legislation: “this process was organized with greater openness, it was accessible not only for international observers, but also for representatives of political parties as well as independent observers, representatives of media, but there was no question of any kind of violations.”
In the letter of Kyzylorda oblast election commission (No. 01-11/71262 of 22 July 2016) it is reported that “during vote count the precinct election commissions hold and resounded a reconciliation of the data on the voter lists and ballots, announced the number of voters, who cast votes according to voter lists and AVCs, the cross-checking of data was done.”
Almaty oblast election commission in its letter (No. 18 of 18 July 2016) reported that “applications for voting outside the polling stations after 12:00 have not been accepted”. All other oblast election commission did not confirm the fact that requests for voting outside polling stations have been received after legally prescribed time.”
All members of election commission of all levels were trained at workshops of the higher election commissions. Training courses were organized for leadership of district and precinct election commissions, which were attended by members of oblast election commissions. During the training coursed the member of commissions passed tests for knowledge of election legislation, they attended the practical lessons on filling in protocols, lectures and training, organized the film screenings, which was prepared by the CEC of the Republic of Kazakhstan.
In addition, training materials, which were produced by the CEC of the Republic of Kazakhstan, have been transferred to all election commissions. Thus, all measures for the conduct of transparent, well organized and fair elections have been taken. The CEC RK has prepared and sent the corresponding letters (No. OSK-05/702i of 1 July 2016) to all oblast, cities of Astana and Almaty election commissions with attachment of critical observations contained in the Final Report of the OSCE/ODIHR EOM of 27 June 2016. None fact has found its confirmation.
The OSCE/ODIHR EOM has not submitted to the CEC of the Republic of Kazakhstan and has not provided in the Final Report the clear and convincing evidence of the mentioned violations.
78. The negative assessment was linked to procedural violations and a lack of transparency. Premises and conditions were inadequate in one fifth of observed TECs, which at times negatively affected observation. In addition, IEOM observers reported that in 33 TECs they did not have a clear view of procedures or that tabulation was conducted in several rooms thereby preventing meaningful observation. This also potentially negatively affected the ability of the TEC members to oversee the process (page 22).
79. In many cases, TECs refused to provide IEOM observers with summary tables and consequently, the OSCE/ODIHR EOM was not able to fully cross-reference all PEC and TEC protocols. Nevertheless, in the few instances where PEC results protocols were compared against the available summary tables and their respective TEC protocols the OSCE/ODIHR EOM noted that votes were reshuffled among different parties (Footnote 80: Votes were subtracted from NSDP, Birlik and Auyl and added to Nur Otan, CPPK and Ak Zhol; or votes were subtracted from Nur Otan and added to CPPK and Ak Zhol) (page 22).
The CEC RK standpoint on items 78, 79: This criticism is not supported by the stakeholders of the electoral process. Moreover, the oblast, cities of Astana and Almaty election commissions reported about non-correspondence of this information to reality. “All protocols were compiled and filled by election commissions in the premise of polling stations”, - stated the Kostanay oblast election commission in its letter (No. 106 of 11 July 2016). The same was reported in the letter of Kyzylorda oblast election commission (No. 01-11/71-262 of 22 July 2016): “in all polling stations during vote count the observers were placed at a distance from where it was possible to see the marks on the ballots of voters. Vote count was conducted in those premises, where voting was held. Nowhere changes and even more shuffling in the results of protocols of territorial election commissions were made, data in protocols were summarized visually and in electronic format.”
At the same time, Almaty oblast election commission in its letter (No. 18 of 18 July 2016) reported the following: “Protocols of precinct election commissions were not changed in the premises of territorial election commissions but only summarized the general results of voting by oblast. Complaint on the facts of redistribution of votes does not correspond to reality, as after vote count the corresponding protocols were compiled in the presence of proxies and observers, and none of them expressed doubt in their authenticity. Complaints and appeals on these issues to the election commissions of oblast, the prosecutor office and the courts have not been submitted.”
80. The CEC only published summaries of final results for all regions and the cities of Astana and Almaty on its website, did not provide results by polling station or summary tables from TECs, RECs, or the CEC (Footnote 82: Paragraph 19 of the 2011 General Comment No. 34 to Article 19 of the 1966 ICCPR states that “State parties should proactively put in public domain Government information of public interest. State parties should make every effort to ensure easy, prompt, effective and practical access to such information”. Paragraph 20 of the 1996 General Comment No.25 to Article 25 of the ICCPR states that “[...] There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes.” Article 10 of the 2003 UNCAC states that State Party shall, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decision making processes). The overall processing of results lacked transparency as the ability for stakeholders to verify PEC protocol information was limited (page 22).
The CEC RK standpoint: Republic of Kazakhstan has fulfilled the conditions of paragraph 19 of the 2011 General Comment No. 34 of the UN Human Rights Council to the International Covenant on Civil and Political Rights of 1966 in respect to ensuring wide access to the government information of public interest. The CEC of the Republic of Kazakhstan at its official Internet resource published the preliminary summary by election commissions of oblast as well cities of Astana and Almaty on election day, and the final results – in the morning of 23 March 2016.
Paragraph 20 of the 1996 General Comment No. 25 to International Covenant on Civil and Political Rights also has been fulfilled by the Republic of Kazakhstan. Independent bodies conducting validation of the voting and counting of votes are higher election commissions, which in accordance with Articles 14 and 16 of the Constitutional Act on Elections receive from lower-level election commissions the protocols on voting results, organize their check and enter them in the results of election at the level of district, territory or oblast. None of the voter expressed doubts concerning the integrity of ballot papers and the counting of votes.
At the same time during the vote count the polling stations were attended by observers of political parties, public associations and non-profit organizations, as well as observers of foreign states and international organizations, representatives of media, proxies of political parties, who did not doubt the correctness of the voting and the counting. Complaints and allegations about doubts in the correctness of the voting and integrity of ballots have not been reported. As we can see, the results of voting were transparent, and nobody limited the ability to verify the information in the protocols of PECs.
The OSCE/ODIHR EOM has not submitted to the CEC of the Republic of Kazakhstan and has not provided in the Final Report the convincing evidence of mentioned violations during parliamentary election.
XV. Recommendations
A. Priority Recommendations
1. The legal framework should be comprehensively reviewed to bring it more closely with OSCE commitments and other international obligations and standards, as well as to address past and present OSCE/ODIHR electoral assessments and recommendations. Reform should be undertaken with open and broad consultation with all relevant stakeholders, including civil society, well in advance of the next elections.
Election legislation of Kazakhstan in general meets international principles of election law, set forth in the Copenhagen Document and the work for its improvement is constantly conducted.
Since the time of adoption of the Constitutional Act of the Republic of Kazakhstan “On Elections in the Republic of Kazakhstan” of 28 September 1995 (hereinafter – Election Law) for the purposes of its improvement and bringing it into line with the standards of international electoral law it was amended 16 times. In total 814 changes and additions have been made. Many of these amendments have been made as a result of a broad and open discussion with the representatives of the country's civil society, as well as with the involvement of the OSCE/ODIHR experts.
The Central Election Commission of the Republic of Kazakhstan (hereinafter - CEC) is always open to discuss possible changes to the electoral legal framework with the OSCE/ODIHR, other international organizations, interested state bodies, political parties, public associations and others.
Recommendation is being implemented on a permanent basis.
2. The legislation should be revised to ensure that all seats in at least one chamber of the parliament are freely contested in a popular vote, as provided for by the OSCE commitments, also with a view to fully protect the equality of the vote.
CEC previously repeatedly made comments on this recommendation. 98 deputies’ seats in the Mazhilis of the Parliament are elected by direct election. In this regard each voter has one vote at their election. In this case the requirement of paragraph 7.2 of the OSCE Copenhagen Document of 1990 is been fulfilled. In turn, the presence of nine representatives of the Assembly of the People of Kazakhstan in the Mazhilis of the Parliament of the Republic of Kazakhstan is one of the special measures to ensure the political, socio-economic and cultural rights of the national minorities, which are more effectively implemented in the Mazhilis of the Parliament than in the Senate. This measure is the fulfillment of the requirements of Paragraph 31 of the same OSCE Copenhagen Document of 1990.
This recommendation is in conflict with the provisions of Article 51 of the basic law of the Republic of Kazakhstan, which establishes that the 98 deputies of the Mazhilis of Parliament are elected on the basis of universal, equal and direct suffrage by secret ballot, and 9 – by the Assembly of the People of Kazakhstan.
Recommendation cannot be accepted.
3. The law should be amended and clarified to effectively guarantee equitable representation of contesting political parties in election commissions, including by providing for a transparent appointment process with objective criteria devoid of political consideration and mandating that party representation be maintained when commissioners are replaced.
Such guarantees in the Republic of Kazakhstan are established. Political parties are provided with equal conditions for participation in the formation of the composition of election commissions at all levels. Analysis of the election of members of election commissions by local representative bodies (maslikhats) in 2014 shows that the representation of political parties in election commissions corresponds to their activity in the course of the nomination of their candidates to the election commissions.
In addition, political parties, which do not have a representative in the composition of election commission, are eligible not only to nominate to election commissions their representatives with advisory vote during preparation and conduct of elections, but also to have proxies and observers to be registered in the order established by Election Law.
Recommendation has been already fulfilled before its submission by the OSCE/ODIHR EOM and is being implemented on the permanent basis.
4. Consideration could be given to creating a centralized and streamlined system between the relevant institutions to directly exchange and correct data in the nationwide voter register in a timely manner.
Election Law clearly regulates the procedure of compilation of voters’ lists, which are formed on the basis of registration of a voter at the place of residence in the territory of the corresponding electoral precinct (this is a uniform means for compilation of voters’ lists). A citizen can be enrolled only in one voter list.
Public officials of local executive bodies shall bear responsibility for the accuracy of lists and data about voters. In addition, in order to avoid duplicate entries in the voters’ lists the CEC twice a year (till 1 July and 1 January) and prior to election conducts cross-check of the electronic voter register.
The CEC continues to work with the Government and local executive bodies and other bodies engaged in population register to improve the quality of voters' lists.
Recommendation is fulfilled and is being implemented on the permanent basis.
5. Consideration should be given to adopting temporary special measures to enhance participation of women.
Legislation of Kazakhstan provides for special measures to enhance participation of women in elections. For example, clause 3 of Article 5 of the Law of the Republic of Kazakhstan of 15 July 2002 “On political parties” obliges political parties to create for its members “equal opportunities for representation in the lists of candidates to deputies and to other elective offices.” As a result of the taken measures, the proportion of women in the Mazhilis of Parliament has been increased, which exceeds the global gender index and is close to the recommended representation rate of 30%.
Recommendation is implemented in practice.
6. Independent candidates should be allowed to stand for parliamentary elections.
Independent candidates in Kazakhstan could run for all elective offices: the President, deputies of the Senate of Parliament and maslikhats of the Republic of Kazakhstan, local akims (governors), with the exception of lists of candidates from political parties to be elected to the Mazhilis of the Parliament by the proportional system. It meets the requirements of the Copenhagen Document and other documents of the OSCE, the Council of Europe, the CIS as well as the practice of a number of developed democratic states of the OSCE.
Recommendation cannot be accepted.
7. With a view to safeguard editorial independence, the legal framework could be revised to allow broadcasters to decide on the format and conditions of election-related programming and to achieve a better balance between the contestant-related information that is to be paid from the campaign fund and a comprehensive and meaningful election media reporting.
Legislation of the Republic of Kazakhstan does not prohibit the broadcasters to determine the format and conditions of election-related programming. For instance, according to clause 1 of Article 7 of the Law of the Republic of Kazakhstan of 23 July 1999 “On Mass Media” editorial board conducts preparation and airing programs on behalf of the owner. During preparation and conduct of election of deputies of the Mazhilis of Parliament of 20 March 2016 journalist had full access to all information relating to the election and broadcasters could independently determine the format and conditions of programming. The law guarantees the provision to parties/candidates with equal conditions for the access to the media for holding pre-election campaign (clause 2 of Article 28 of the Election Law). The criteria for what information about the pre-election activities of political parties/candidates must be paid from the election funds is spelled out in the Rules for spending of electoral funds, approved by the CEC Resolution of 7 August 1999 No. 19/222. The procedure for providing airtime on a contractual basis to be paid from the election fund of the party is contained in Chapter 4 of the Rules of holding pre-election campaign through the media, approved by the CEC Resolution of 25 June 2007 No. 90/178.
Recommendation has been fulfilled.
8. The law should guarantee citizen observers the right to observe the entire electoral process and clearly stipulate that all observers be entitled to TEC and REC results protocols with detailed summary tables.
The election law does not limit the powers of local observers to carry out their activities only during the day of elections. Domestic observers may attend all sessions of the election commission (clause 7 of Article 20, sub-clause 1 of clause 2 of Article 20-1), be familiarized with the decisions of election commissions (clause 6 of Article 20), receive copies of protocols on election results and be acquainted with summary tables of district election commissions (clauses 8-1 and 8-2 of Article 43), with communications the CEC and TECs on the results of election (clause 4 of Article 44).
Recommendation has been implemented.
9. To ensure access to an effective remedy for all participants in the process, the Election Law should require that all matters of a dispute nature be treated as a complaint and explicitly set out procedures for the consideration of complaints and require that all disputes be reviewed in a collegial manner and that decisions be written, reasoned and made public.
According to sub-clause 13 of Article 1 of the Law of the Republic of Kazakhstan of 12 January 2007 “On the procedure for consideration of appeals of physical persons and legal entities” the complaint is defined as “demand of a person to restore or protect the violated rights, freedoms and legal interests of him/her or other persons.” In this regard, any appeal cannot be regarded as a complaint, if it by its content is not such.
The election law provides to voters and parties with opportunity to submit complaints relating to the electoral process to the courts, the higher the commission and the prosecutor's office, as well as allows them to appeal against decisions, actions or inaction of election commissions and local authorities that violate the election law.
The principle of collegiality is realized by familiarization of the CEC members with received appeals and taking into account their views when they are considering.
10. Effective measures should be taken to prevent serious violations in order to improve the integrity of the voting, counting and tabulation process and guarantee the equality of the vote.
The election law fully contains the effective measures to prevent serious violations at all stages of the election campaign, which is also enshrined both in the criminal and administrative legislation of the Republic of Kazakhstan.
B. Other Recommendations
Electoral System and Legal Framework
11. The system by which seats are allocated to the candidates on the party lists could be revised to ensure that voters have sufficient information about who will represent the political party they choose.
During the election campaign, each voter of the country could familiarize with the lists of candidates from all political parties by means of the national print media "Egemen Kazakhstan" and "Kazakhstanskaya Pravda" dated 4 February, 6 February, 9 February, 12-13 February, 3 March 2016, of the official Internet resource of the CEC (www.election.gov.kz), the Internet resources of political parties, as well as TV videos of the CEC and political parties, from other sources of information.
Political parties prepare and present to the CEC the party lists in alphabetical order, which is convenient for informing the voters. The sequence of the distribution of seats is to be determined by the governing body of a political party from candidates included in the party list.
Thus, adopted in Kazakhstan system of compilation of party lists, familiarization with information about candidates included in the party lists, and the distribution of seats is not different from the democratic norms generally accepted in the world and is not contrary to the good practice.
Recommendation has been implemented and is being implemented at all election campaigns.
Election Administration
12. Measures to safeguard the independence of election commissions could be taken, particularly to address potential conflict of interests when hierarchical employment relations are replicated in the composition of PECs.
According to clause 9 of Article 19 of Election Law election commission must not be composed of employees of one organization. However, the Election Law does not specify how many members of election commission can be from the same organization. That is, the election commission shall have the authority, if at least one its member is an employee of another organization.
Despite any labor relations the PECs members are obliged to ensure respect and protection of electoral rights and legitimate interest of citizens, and demonstrate impartiality and independence in decision-making (sub-clause 8 of Article 19 of the Election Law). Members of PECs bear administrative and criminal liability for violation of election legislation. And this provision of Election Law is observed everywhere.
This recommendation requires further study.
Voter Registration
13. The restriction of suffrage rights of citizens serving prison terms regardless of the severity of the crime committed should be reconsidered to ensure proportionality between the limitation imposed and the severity of the offense. Disenfranchisement of persons with mental disabilities should not be based on the blanket restriction but rather on a case-by-case consideration by the court, depending on specific circumstances.
Restriction of active suffrage in respect of persons, who serve prison terms as well as who were recognized by a court as legally incapable, is not the violation of international electoral law.
The wording of recommendation “disenfranchisement of persons with mental disabilities should not be based on the blanket restriction but rather on a case-by-case consideration by the court depending on specific circumstances” is incorrect since the Constitution of Kazakhstan (clause 3 of Article 33) and the Election Law (clause 3 of Article 4) establish that the citizens, who were recognized by the court as legally incapable shall not participate in elections.
The election legislation of Kazakhstan adheres to the principle of proportionality and respect of their international obligations in this matter. This restriction is enshrined in the Constitution, is proportionate to the aim of legislation, is objective and reasonable.
Recommendation cannot be accepted.
14. To enable authorities to reflect changes in the voter register, consideration should be given to delivering final voter lists to polling stations closer to election day.
The election legislation provides for the submission by akims of the voters’ lists to the relevant election commission 20 days before the voting day (clause 5 of Article 24 of the Election Law).
15 days before election day the voters’ lists are provided to the voters at polling stations in order to allow citizens to get acquainted with the lists directly in the precinct election commissions, "to appeal against non-inclusion, incorrect inclusion in the list or exclusion from the list, as well as inaccuracies of data about voter in the lists" and submit to the precinct election commission or the court an application if there is the need to make corrections to the list (article 26 of the Election Law).
Recommendation cannot be accepted.
15. Consideration could be given to removing the possibility for voters to register on election day. A legal deadline for closing voter lists could be introduced, with additional entries permitted only in accordance with clearly defined legal requirements, subject to judicial control.
According to Paragraph 11 of the General Comment No. 25 of 1996 of the UN Human Rights Committee it is established that “states must take effective measures to ensure that all persons entitled to vote are able to exercise their right. Where registration of voters is required, it should be facilitated and obstacles to registration should not be imposed.” Legal terms for registration of voters’ lists are prescribed in Articles 24, 25, 26 of the Elections Law.
Therefore, denial of practice of voter registration on election day is considered as impossible since it is necessary to ensure that eligible voters of the Republic of Kazakhstan are not deprived of this constitutional right.
Recommendation cannot be accepted.
Candidate Registration
16. To facilitate voters’ informed choice, consideration should be given to providing additional information to the general public on the candidates in the party lists.
CEC and lower-level election commissions created all conditions for providing the general public with additional information on the candidates in the party lists.
Political parties actively used every opportunity to raise public awareness about the registered candidates. Candidates’ lists were published in national newspapers, posted on the websites of news agencies, Internet resources of political parties and in many other information sources. The candidates included in the party lists participated actively in the pre-election campaign. The media was provided with the opportunity for the extensive coverage of electoral process on equal grounds.
Recommendation has been implemented in the recent parliamentary election.
Election Campaign
17. The Law on Peaceful Assemblies should be amended to require a simple notification procedure, with appropriate exceptions for spontaneous assemblies, instead of the current authorization requirement.
Legislative regulation of the procedure of peaceful assembly is generally consistent with international practice and 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). Limitations are grounded in nature and aimed at ensuring public order, public health and protection of the rights and freedoms of others.
Recommendation cannot be accepted.
18. To enhance the integrity and public confidence in the electoral process, authorities should develop safeguards to ensure a clear separation between the state and party.
In the Republic of Kazakhstan the safeguards to ensure a clear separation between state and party are established on the constitutional and legislative levels. Participation of public authorities and their officials while exercising official duties in the pre-election campaign of political parties is forbidden. Establishment of organizations of political parties in the state bodies, illegal interference of the state in the affairs of political parties and political parties in the affairs of the state, imposing on political parties the functions of state bodies are not allowed.
Recommendation has been implemented and is being implemented long before its submission by the OSCE/ODIHR EOM.
Campaign Finance
19. To enhance transparency, detailed and standardized campaign finance reports could be considered, including full data on the sources of funding and the expenditures. Such reports should be publicly available and posted on the CEC website.
All reports on spending means from election funds of all political parties are published on the CEC website, which are available to the public.
Financial reports were also published in the central newspapers “Egemen Kazakhstan”, “Kazakhstanskaya Pravda” on 5 April 2016. Thus, the Republic of Kazakhstan ensured full transparency of financing of pre-election campaigns of political parties. Information on sources of funding cannot be published without the consent of the donors.
Recommendation cannot be accepted.
Media
20. The obligation to organize pre-election debates could be placed on state-funded channels instead of the CEC. The legal framework should be amended to guarantee contestants additional free of charge coverage by the state-funded media to ensure a more level playing field and more substantial voter information.
State-funded channels as well as private channels are eligible to organize pre-election debates of political parties without participation of the CEC provided that on the costs on their holding are paid from the election funds of political parties.
In order to provide equal access to the media, the state guarantees free participation of the parties in the political debate on television, organized by the CEC.
Political parties, which involved in the struggle for deputy mandates, should have the organizational and logistical capabilities and pay the costs for holding pre-election campaign from the means of their election funds.
Recommendation on pre-election debates has been already implemented before its submission by the OSCE/ODIHR EOM. Recommendation on additional free of charge coverage by media of the pre-election campaign of political parties cannot be accepted.
Participation of National Minorities
21. Consideration could be given to amending the legal framework so as to provide for the collection and limited sharing of disaggregated data on ethnic origin of all election candidates and election administration members, while respecting non-discrimination and privacy principles.
According to clause 1 of Article 19 of the Constitution of the Republic of Kazakhstan each person is eligible to indicate or not to indicate “his ethnic, party and religion origin”.
In the last elections the CEC has published data on the ethnic origin of the candidates running for election and members of the election administration, specifying only their total number, without underlining each person by surname. Thus, the principles of non-discrimination and privacy were respected.
Recommendation has been implemented.
Complaints and Appeals
22. The Election Law should be amended to allow voters to directly appeal the election results in their constituency and all electoral contenders to appeal the final results with the Constitutional Council.
Clause 1 of Article 95 of the Election Law clearly states that citizens of the Republic of Kazakhstan (voters, candidates) may directly appeal the results of election of deputies of the Mazhilis of Parliament in the corresponding administrative-territorial unit (constituency) to the Central Election Commission. If election in those administrative-territorial units is recognized as invalid, the re-run of voting is to be called.
TEC is eligible to consider applications and complaints on decisions and actions (inaction) of district and precinct election commissions (sub-clause 3 of Article 14 of Election Law), and DEC – on decisions and actions (inaction) of precinct election commissions (sub-clause 3 of Article 16 of Election Law).
Constitutional Council is not a judicial body, but the body exercising constitutional control. Its responsibility does not include proceedings on election issues, and in this connection the candidates cannot challenge the final results to the Constitutional Council. There are the judicial and electoral systems of the Republic of Kazakhstan, which deal with this matter.
Recommendation cannot be accepted.
23. As a confidence building measure, the transparency of the dispute resolution process should be enhanced through the timely publication of information on complaints received by election commissions at all levels, their nature and resolution.
A procedure for consideration of complaints is fully transparent. Information is published in the section “Consideration of appeals of physical persons and legal entities” on the official Internet resource of the CEC.
Recommendation on the lower-level election commissions requires further study.
Election Day and Announcement of Results
24. As previously recommended, to enhance transparency and confidence, election results should be published disaggregated by district and polling station, including the number of registered voters and those who voted, as well as the number of votes cast for each party. The CEC could publish such data on its website immediately after submission of PEC protocols.
According to clause 5 of Article 44 of the Election Law data in communications of the CEC and TECs on election results is published disaggregated by electoral districts and in the communications of district election commissions – by polling stations. Thus, the election legislation does not contain a requirement for the publication by the CEC and TECs official election results disaggregated by polling stations. This data is published by DECs in respect of election of maslikhat deputies.
Nevertheless, after the end of voting the existing election legislation provides not only for familiarization with, but also issue of copy of protocol by the corresponding election commission to observers, proxies, representatives of media.
Clause 8 of Article 43 of the Election Law stipulates: “copy of protocol is immediately posted in the premise of polling station in the specially designated place for public scrutiny and is remained in the premise for two days. At the request of a person present during vote count he may be issued with copy of protocol to be certified by signatures of the chairperson, secretary and the seal of election commission.” This is the kind of publication, bringing the results of voting at each polling station to the public.
In addition, the CEC posts at its Internet resource summarized results of election disaggregated by region.
Recommendation cannot be accepted.
List of abbreviations
APK - Assembly of the People of Kazakhstan
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’s 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
PACE - Parliamentary Assembly of the Council of Europe
PA OSCE - Parliamentary Assembly of the Organization for Security and
Co-operation in Europe
PDPP “Auyl” – “Auyl” People’s Democratic Patriotic Party
PEC – Precinct election commission
PP – political party
REC – Regional election commission
RK – Republic of Kazakhstan
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
9 September 2016