Opinion on the Interim Report by ODIHR/OSCE No. 1 dated 17-26 October 2005 in connection with the forthcoming Presidential Election on 4 December 2005
The Interim Report by ODIHR/OSCE No. 1 dated 17-26 October 2005 consist of the following parts: general provisions, introduction, legal framework, election administration, electronic voting, registration of the contenders, the atmosphere before and during the campaign, mass media, claims and applications, work of Election Observation Mission (EOM) ODIHR/OSCE.
On General provisions of the Interim Report by ODIHR/OSCE. In this part the Election Observation Mission (EOM) ODIHR/OSCE briefly states the contents of the entire Report with special emphasis on the relationship between the authorities and opposition.
On Legal framework. The Central Election Commission of the Republic of Kazakhstan states that the ODIHR/OSCE Mission acknowledges the progress in lawmaking for improvement of the election process “The Constitutional Law on Elections in the Republic of Kazakhstan (the Law on Elections) was supplemented several times, last time it was made in April 2005; some of alterations adopted in 2004 constitute a significant progress”. At the same time ODIHR/OSCE notes that the Law on Elections shall be further improved in accordance with the OSCE’s obligations on democratic election including elimination of limitation of the righ to be elected, sufficient guarantees and pluralistic government in the election commissions; elimination of limitation of the contenders’ right to take part in the political dialogue during the campaign (including the provisions related to the honour and dignity of the President).
However from our point of view this statement is not enough jastified since in the Law on Elections the limitations of the right to be elected are minimal: e.g. the citizens willing to be a President shall be under 40, national by birth, to reside no less than 15 years in Kazakhstan, be fluent in official language, without prior conviction. All these limitations were established by the Constitution of Kazakhstan and Law on Elections. The pretenders will be registered as contenders so long as the relevant conditions are met (payment of the election fee, declaration of the incomes, collection of the required number of the supporting electors’ signatures). Different variations of the specified limitations exist in the constitutional and current law of almost all countries in the world.
The representatives from all political parties of Kazakhstan participate in the election commissions of all levels. The members of the election commissions shall be elected by the deputies from local representative agencies (maslikhats) by secret voting excepting any influence on the deputies’ will.
According to the Law on Elections all contenders have equal rights and conditions for access to the mass media and other means of election campaign, the limitations in the “political dialogue” are therefore excluded. Accroding to the law the contender will be excluded if, on the knowledge of the court the contender and (or) his authorised representatives disseminate false data damaging honour and dignity of other contender but not the President only undermining his business reputation.
As stated in the ODIHR/OSCE Mission Report on evaluation of needs, some of the amendments made in 2005 into the Law on Elections do not comply with the OSCE’s obligations related to the democratic election. Moreover clause 44.6 imposes such regulation “from the completion of the election campaign till official release of the election results any form of public, group, or personal interests and protestation, which contributes to influence on the electors or members of the election commissions are prohibited”. On the opinion of ODIHR/OSCE this alteration violates a basic and admitted right for freedom of associations and peacefull meeting.
Having thoroughly studied the position of the ODIHR/OSCE the Central Election Commission has drafted a legislative proposal to exclude item 6 clause 44 from the Constitutional Law of the Republic of Kazakhstan “On Election In the Republic of Kazakhstan”. In the near future the Central Election Commission is going to review it in the Parliament of the Republic of Kazakhstan so long as the required procedures are met.

On Election Administration. “The authors of the Interim Report by the ODIHR/OSCE Mission consider two main parties “Otan” and “Asar” supportig the acting President have the largest represntation in local election commissions, with 14.2 and 13,3 per cent accordingly. The members of the commissions from other parties are significantly less; amongst the parties defined themselves as opposition to the acting power, the “Ak Zhol” proposed 4.8 per cent of the members of local election commissions, the Comunist Party of Kazakhstan proposed 2.2 per cent. For the most part it is a result of a low level of the parties’ representation in the agencies appointing the members of the commissions”.
The arguments of the Central Election Commission of the Republic of Kazakhstan related to the representations of the political parties in the election commissions are specified in the Statement dated 11 November 2005.
Further in the Report the authors stated that since November 18 the electors which are not able to vote at their polling station would be entitled to receive a strike off certificate (SOC) in the local election commisson where they were registered. At the same time the Law on Elections and other legislative acts do not govern application of the SOC; on the opinion of the mission it may imply use of different standards and procedures in the Oblast commissions. It is also not clear whether this process would be opened to the observers, the authorised representatives of the contenders, and mass media.
In the meanwhile since the strike off certificate is used item 6-1 clause 41 of the Constitutional Law of the Republic of Kazakhstan “On Election In the Republic of Kazakhstan” very clearly states the actions of the election process members “In case an elector changed his residence during the period from submission of the electoral registers to publicity till the election date the local election commission is to issue a strike off certificate for the right of voting to the elector on his requets provided his identity documents. The appropriate note shall be made in the electoral register. The local election commission will include the elector into the electoral register on the voting date in the polling station of his residence upon submission of the strike off certificate for the right of voting”. In addition the detailed explanations of the procedure for registration and issue of the strike off certificates are stated in the Instruction to the Central Election Commission of the Republic of Kazakhstan “On Issue Of Strike Off Certificates For The Right Of Voting” dated 26 april 2005.
On 11 November 2005 the Central Election Committee adopted a regulation “On making the strike off certificates for the right of voting during the Presidintial Election in the Republic of Kazakhstan in 2005 году ” which states “the Oblast, the Astana and the Almaty election commissions are to make the strike off certificates for the right of voting by printing (hereinafter the strike off certificates) by printing accroding to the form established by the decree of the Central Election Commission of the Republic of Kazakhstan dated 26 april 2005 No. ½ on the basis of 5% (five per cent) of the total number of the electors included into the electoral registers in relevant oblasts, Astana and Almaty cities and submit those to the rayon, city, and rayon in city election commissions. The rayon, city, and rayon in city election commissions shall deliver the strike off certificates to the local election commissions on the basis of 3% (three per cent) of the total number of the electors included into the electoral registers on relevant polling station”.
As determined by the Law on Elections the process of strike off certificates use will be opened for the observers, authorised representatives of the contenders, and mass media.

On electronic voting. The electronic election system first was applied during the regular Parliamentary Mazhilis Election in autumn 2004. The ODIHR/OSCE Mission acknowledged the improvement of the electronic election system since parliamentary election in 2004. The Interim Report states “Consequently the important parts of the system have been modified, especially those related to its interface; on the coming election the electors would be able to use the touch-screen system terminals for voting instead of bar-codes applied in 2004; those electors damaged the electronic ballots would receive an electronic card upon request. Software facilities (voting data recording device) of the electronic election system allows automatical saving of any information entered with the description of the action and specifying an exact enter time. The system keeps this record on a nonvolatile device, (PI-card), cryptographically protected. Provided a special PI- card software one may see and visually count the votes given to one or another contender from any electronic polling station.
Having concurred with the appraisals stated in the previous ODIHR/OSCE Reports the present Mission finds a defficiency of the electronic voting system in lack of a hand control and also supporting papers which could contribute to the recounting or be used as a document when protesting at the voting results. According to the authors of the Interim Report the system allows the electors receiving a generated number which will appear in the protocol next to the name of the contender chosen, the check code allows elector to check whether his/her vote was appropriately registered, and how he or she was voting. At the same time the Mission considers the check code may imply abusive acts and pressure upon a free will of the elector. It also considers the electronic voting system was not reviewed independently by the stakeholders since parliamentary election.
The Central Election Commission considers the electronic election system was established first in order to eliminate voting and control paper mediums. It was marked as advantage by the Experts of the State Commission on acceptance of the system and Microsoft and Orakul experts who investigated the system while creating. The check code that any elector may receive will remove all the doubts on violating his will. It is not clear how the check code stated as ‘control code’ in the Report “may imply abusive acts and pressure upon a free will of the elector”. In fact the elector receives the check code as soon as he completed voting only, i.e. his will was already expressed.
According to the request of ODIHR/OSCE the Central Election Commission of the Republic of Kazakhstan enabled the technical experts of the ODIHR/OSCE to get acquainted with the electronic voting system.
Besides this recomendation does not refer to the obligation of the OSCE member countries, which is stated in the Copenhagen Document; nevertheless the Central Election Commission of the Republic of Kazakhstan has implemented the recomendation of the ODIHR/OSCE in this respect. The recomendation shall be deemed implemented

On registration of the contenders. See the arguments related to this part in the Statement of the Central Election Commission of the Republic of Kazakhstan dated 11 November 2005.


On the atmosphere before and during the campaign. Having defined the atmosphere in Kazakhstan before and during the election campaign the ODIHR/OSCE Mission paid attention to a number of cases happened in Almaty particularly, which infringed the main right of the citizens for freedom of assembly and speech. The Mission in detail described the opposition arrangements held on October 8 on the threshold of an official election campaign: the senator Zauresh Battalova conducted so-called ‘meeting with the electors’on the main square of Almaty. The authorities regarded this arrangement attended by about 150-200 persons as ‘unsanctioned meeting’. During the meeting according to the decision of regional specialised court of Almaty several persons were arrested, five of those were penalised under clause 373 of the Administrative Code in the amount from KZT9.710 to KZT45.550 (USD75 and USD365 accordingly) for ‘organisation’ or ‘attendance’ of this arrangement. The Mission came to the conclusion that “These administrative sanctions mean that if those people would be again engaged in the ‘unsanctioned meetings’ (most of those are high-ranking activists of the headquarters supporting Mr. Tuyakbai) they could be called for criminal liability”.
The Central Election Commission of the Republic of Kazakhstan considers the number of cases happened in Almaty did not infringed the main right of the citizens for freedom of assembly and speech. Quite the contrary the persons acting in those cases deliberately created the situations as if they infringed the right of citizens for freedom and speech. In addition their actions were in conflict with the Law of the Republic of Kazakhstan in force, and they knew it and deliberately violated the country legislation norms. So the senator Z. Battalova was not entitled to arrange and conduct so-called ‘meeting with the electors’ in Almaty since her electors are in Eastern Kazakhstan Oblast, and the electors of Almaty have not elected her. She knew about it but deliberately went to supposedly ‘meeting with the electors’ although being notified of the planned mass-meeting. In October 2005 Public Assosiation “To Fair Kazakhstan” enlisting Z. Battalova appealed to the Akim of Almaty in order to get permit to conduct a meeting: the Akim permitted arranging of the meeting in the special place the square behind Sary-Arka cinema. However having roughly ignored the permit of the Akimat and the Law “On Procedure For Arranging And Conducting Peacefull Meetings, Mass Meetings, Processions, Pickets, And Demonstrations In the Republic of Kazakhstan” this association in the person of B.M. Abilov, O.A.Jandosov, A.S. Kosanov, T.M. Tokhtasynov on the plea of the meeting between the senator Z.K. Battalova and population conducted unsanctioned mass-meeting in uncertained place in front of the building of Kazakhstan-British Technical University; although conducting of such meetings in front of educational institutions was directly prohibited by the acting Law (please see clause 7 of the Law of the Republic of Kazakhstan “On Procedure For Arranging And Conducting Peacefull Meetings, Mass Meetings, Processions, Pickets, And Demonstrations In the Republic of Kazakhstan” dated 17 March 1995).
Despite of the recurring official warnings of the prosecution officials with regard to illegitimacy of the stated mass-meeting and to the proposals to stop it the organisators proceeded with this unsanctionated mass-meeting; although as per clause 8 of the stated Law on Meetings they had to obey the request.
So according to the judgement of the court but not the authorties the organisators of this unsanctioned mass-meeting were soundly called to administrative liability.
The conclusion made by the ODIHR/OSCE Mission in this respect is wrong: the criminal law does not foresee an administrative punishment as a basis for calling to the criminal liability in case of reccuring violation of the norms of arranging the mass-meetings and demonstrations (please see clause 334 of the acting Criminal Code of the Republic of Kazakhstan).
Accroding to the authors of the Mission’s Interim Report on 19 October the authorities seized 50 thousand copies of the opposiotion newspaper “Svoboda slova”. The remaining number has been taken by the newspaper’s editor to the headquarters of “To Fair Kazakhstan” (TFK) movement. At forenoon the police gathered round the TFK office building and endeavored seizing the rest of the copies.
Having thorouglhy studied all the circumstances of the case on 21 October 2005 the Specialised Regional Administrative Court of Almaty judged the police actions made as per protocol on the administrative violation No.3 dated 19 November 2005 for seizure of “Svoboda slova” newspaper edition are legally acceptable: as the article “Common Dictator” in some degree compares the Presidential Contender N. Nazarbayev with I. Karimov and represents him as a dictator; in other article of the same newspaper (dated November 19) he was shown as if he was a criminal associate, which violates the principle of presumption of innocence stated in clause 77 of the Constitution of the Republic of Kazakhstan “A person would be deemed innocent in commission of a crime unless his guilt was returned by the court judgement legally enured”. Based on these considerations the court returned guilty the owner of the newspaper “Svoboda slova ChU “Duniye” in the person of the editor-in-chief in commission of an administrative violation stated in clause 100 of the Code of the Republic of Kazakhstan on administrative violations and imposed an administrative discipline as the administrative penalty and obliteration of the whole edition of the newspaper “Svoboda slova” No. 33 (33) dated 19 October 2005.
It is not clear for us why in this part the ODIHR/OSCE Mission applied the term “authorities” which impeded the unsanctioned mass-meeting and seized the copies of the newspaper “Svoboda slova”. It would be more precisely to point to the actions of certain policemen in a certain police station, certain prosecutor’s officials. The use of the term “authorities” means the counteraction to the mass-meeting and the seizure of the “Svoboda slova” newspaper’s edition were made at the command of the country high-ranking authority agencies. If the Mission’s authors possess a relevant proof we ask them to submit that.
As one may see the ODIHR/OSCE Mission represented the analysing fact with prejudice in the form of presecution the newspaper “Svoboda slova” by the authorities for their opposition only.

On mass media. The ODIHR/OSCE Mission provided the statistics of the Ministry of Culture, Information, and Sport on registration of 2110 mass media in Kazakhstan as on September 2005. Regardless of the fact that most of the them are private some of the analysts and sources find the lack of pluralism in the mass media reports. On the opinion of the authors of the Interim Report it is mostly stipulated by the media market structure and regulations of law related to insulting the honour and dignity of the President, violation of which may imply drastic punishment such as custodial coercion up to 3 years, if it was published in the mass media. Despite of the general consent regarding the reqiured new law on mass media everybody still follow the law adopted in 1999.
We find a statement spectrum in the media field of Kazakhstan extremely diverse: from progovernmental to radically opposite statements. Critisizing the President of the country N. Nazarbayev the opposition press use to make many violations, nevertheless none of the journalists was called to a criminal liability.
One should devide the insulting and critisizing the high-ranking officials in the country. The Queen in Great Britain may be neither insulted nor critisized. The journalists and the citizens respecting the law may see the difference between critisizm and calumny (insulting). This differentiation is stated in the Criminal Code of the Republic of Kazakhstan in clause 318 “public statements critisizing the policy conducted by the President of the Republic of Kazakhstan do not imply criminal liablity”.

On the entire Interim Report by the ODIHR/OSCE it is to be noted that positive appraisals are more represented than in previous Reports made by this international organisation. At the same time we find it necessary to mention that having represented some facts the ODIHR/OSCE Mission is perceived in the interests to support the opposition: we regard such actions as actions of so-called doubled standard. The relationship practice shows that the Central Election Commission and other governmental agencies do not conceal anything in their activity, admit the mistakes and violations made by some officials, and take appropriate measures; at the same time none of the Reports stated even flat violations of Law by the opposition. It provokes bewilderment.
It is to be emphasized that some of the remarks and recommendations stated in the Interim Report do not arise from the obligations of the Copenhagen Document member countries dated 1990 related to the democratic election, they therefore could serve as a basis of official evaluation of the election campaign in the Republic of Kazakhstan.

Department of International Affairs
Central Election Commission
the Republic of Kazakhstan