A reference to recommendations reflected in the Report of the Mission of ODIHR/OSCE to observe the election to the Mazhilis of the Parliament of the Republic of Kazakhstan held on 19 September and 3 October 2004 and to recommendations reflected in the eeds Assessment Report of the ODIHR/OSCE Mission held on 13-17 September 2005 due to the coming Presidential election on 4 December 2005.

Following the summary of the election of the Deputies of Mazhilis of the Parliament of the Republic of Kazakhstan held on 19 September and 3 October 2004 the ODIHR Mission prepared the Report. The ODIHR/OSCE Mission Report proposed 24 recommendations.

1. Constitutional Law of the Republic of Kazakhstan “On Election in the Republic of Kazakhstan” (hereinafter, the Election Law) stipulates, that a person who has conviction outstanding or un-quashed in the order established by the law, cannot be a candidate to the post of the President of the Republic of Kazakhstan, a deputy of the Parliament, and maslikhats, i.e. rejection in registration is applied to all convicted for crimes committed, but not only those convicted for slander.

And Kazakhstan is not alone in this legal requirement to the candidates to the elected positions. For example, in Bulgaria, persons contained in the institutions of confinement have no right to be elected to the Popular Assembly of Bulgaria (article 3 of the Law of Bulgaria “On Election to Popular Assembly” of 13 April 2001); in Hungarian Republic persons “serving their sentence in prisons” cannot vote or be elected to the Popular Assembly (article 2 of the Law No. XXXIV of 1986 “On Election to Popular Assembly of Hungarian Republic” with amendments of 1998); “no one contained in the institutions of confinement” and no one accused by the Tribunal, “cannot be registered for voting or act as a candidate or tale any appointed or elected state position on the territory of Bosnia and Herzegovina”, - this is what article 1.6 of the Common Legislation on Election of Bosnia and Herzegovina of 23 August 2001 says; Article 5 of Law on Election to the Seym of Latvia (with changes made to the Law on Seym as of 26 March 1998) states: “persons convicted for deliberate crime cannot be included in the lists of candidates and cannot be elected to the Seym…, and persons whose previously committed crimes have not been closed”; according to Article 100 of the Constitution of Azerbaijan Republic of 12 November 1992 the candidate to the post of the President cannot be a person having a criminal record; from the contents of Articles 7 and 8 of the Law dated 12 April 2001 “On Election to the Seym of the Republic of Poland and the Senate of the Republic of Poland” in can be seen that persons deprived of public and voting rights by the decision of the court or the State Tribunal cannot be candidates for election. Criminal Laws in many countries contains on criminal responsibility for slander.
As to the denial of right to candidates as a result of insignificant errors in financial statements, the Law “On election in the Republic of Kazakhstan” does not contain such strict requirements, and this is the matter of the law enforcement practice. In its practice the Central Election Commission keeps to a position that when candidates are allowed to eliminate errors through provision of additional declaration financial statements by them.
it is worth noting that this recommendation is based on the circumstances of the Document of Copenhagen Conference Meeting on Human Measurement of the Security Council of the European Council (SCEC) of 29 June 1990 (hereinafter, the Document of Copenhagen Meeting), and also is not included in the list of liabilities of SCEC. With regards to the above we consider that the recommendation is to be excluded.

2. We consider this recommendation should be excluded. The arguments of the Central Election Commission are given in the Statement dated 11 November 2005.
3. This recommendation is uncertain and does not disclose what is called to give “clear definition of agitation campaign before official commencement of the start of the election campaign”.
Central Election Commission assumes that Article 27 of the Law “On Election in the Republic of Kazakhstan “ gives clear definition of agitation campaign before official start of election campaign.
We consider that the recommendation should be excluded.

4. The Law “On Election in the Republic of Kazakhstan” contains clear provisions on balanced highlighting of election campaign by the state-owned mass media and endows the Central Election Commissions with powers to control fulfillment of liabilities of the law regulating activity of mass media during election period (articles 12, 27, and 28). The acknowledgement of this are the Rules of holding pre-election agitations through mass media and informational support of the election of the President of the Republic of Kazakhstan, approved by the Resolution of the Central Election Commission on 24 September 2005.
The Recommendation is considered to be already fulfilled during the period prior to election of the deputies of Mazhilis in fall 2004 and it is to be excluded.
5. The ODIHR/OSCE Mission (2004) considers, that the Law have a requirements of ensuring continuous and clear record-keeping in the process of electronic voting.
For the first time the electronic election system was applied in Kazakhstan on regular election to Mazhilis of the Parliament in fall 2004. Given the ODIHR/OSCE recommendation we keep the principle of its gradual introduction.
Clause 1 of Article 50-2 of the Law “On Election in the Republic of Kazakhstan” says, that the electronic election system should provide fulfillment of requirements of the Constitution and the Election Law, reliability, completeness and timeliness of information input and deduced out of it.
еру soft-and hardware (device for recording the voting data) of the electronic election system allows automatically following the input save any input information with the description of exact time of its input. Such a record is kept by the system to the energy-independent facility (PI-card) protected cryptographically. Using special software, the PI-card from any electronic electoral district can be reviewed and visually count a number of votes given to this of the other candidate. Moreover, this data can be verified with the electronic protocols signed with the electronic sign and stores on central and Oblast server of “Sailau” system. In case disputes occur this device can be used as evidence in the court, according to the laws of the Republic of Kazakhstan.
However, electronic election system fully ensures observance of secrecy of the ballot and provides for the opportunity for every voter, if one wishes, check the validity of registering of his/her vote.
It should be specially noted, that following the ODIHR/OSCE request the Central Election Commission of the Republic of Kazakhstan provided an opportunity to the expert of this international organization of electronic voting get fully acquainted with AIS “Sailau”.
Besides that, this recommendation also does not conjugate with the liabilities of the OSCE member countries secured in the Document of Copenhagen Meeting; nevertheless, the Central Election Commission of the Republic of Kazakhstan implements the ODIHR/OSCE recommendation on this matter. The recommendation should be considered as fulfilled.

6. The authors of the Mission Report (2004) recommended: “To ensure openness, the Law should have a clear requirement to the Central Election Commission of the Republic of Kazakhstan to announce final results by electoral district”.
The Document of Copenhagen Meeting does not include a provision for the Law to have a “clear requirement to the Central election Commission to announce final results by electoral district”. Clause 7.4 of this international legal act only says that to have “counting of vote and its announcement to be honest and official results to be published”. In number of countries ( Azerbaijan, Georgia, Ukraine, Russia) the Central Election Commissions announce final results based on the counting of votes of okrug, but not district electoral commissions.
Article 20.1 of the Law “On Election in the Republic of Kazakhstan” provides for maximum publicity in the activity of election commissions. It is not only final results of voting announced on each electoral district, but also the presence of the fiduciaries of candidates, representatives of the mass media, observers from the political parties, public associations, non-commercial organizations and international observers in ensured. Moreover, the Central Election Commission in its Message of 11 October 2005 wrote that timely (within 24 hours) data on the results of election by districts and Oblasts will be provided, and that this data will be published on internet.
We consider the recommendation is fulfilled.

7. In its report (2004) the ODIHR/OSCE Mission wrote, “amendments should be made to the Election Law concerning clear definition of procedures of submitting claims and appeals, including the relevant competent bodies and their disclosed independent activity, as well as terms of submitting claims and appeals and announcement of decisions on them. The Law should explain liabilities of election commissions on decisions made on appeals”.
The system of rights of the Republic of Kazakhstan presumes that each legal statutory act, including the Law “On Election in the Republic of Kazakhstan” shall have its subject of legal regulation that shall not be duplicated in other legal statutory acts. This also refers to the procedure of handling claims and addresses of the participants of the election process.
The Law “On Election in the Republic of Kazakhstan” does not determined them, and there is no need it doing so, as they are determined in more details and clearer in relevant Resolutions of the Central Election Commission.
At the same time, according to Article 49 of the Election Law all appeals and claims on violation of electoral legislation should be handled within five days. The claims on the decisions and action (negligence) of election commission and its members are reviewed by the higher election commission within three days since the receipt. Claims and appeals arrived less than five days prior to voting and on the day of voting should be considered immediately, i.e. the Election Law regulates the specifics of election related claims and appeals handling.
Recommendation cannot be taken into account as clear definition of procedures of claims, and appeals submission has been stated in Kazakhstan laws even before this recommendation appeared in the ODIHR/OSCE report in 2004. Therefore, it should be excluded.

8. In the Mission Report (2004) it is written, that the amendments determining the attributes of mandates to the elected candidate but not the political parties should be made to the Law “On Election in the Republic of Kazakhstan”. Particularly, the Report says further, the elected candidate should not lose the mandate due to the change of his/her political preferences, liquidation of the party or post-election decision towards the political party irrespective the certain formula of the seats distribution.
The attribute of the deputy’s mandate to the political party that advanced the party list has been determined by the Resolution of the Constitutional Council of 17 May 2001 “On Official Interpretation of Clauses 3 and 5 of Article 52 of the Constitution of the Republic of Kazakhstan”. It determined that the basis for termination of the mandate of the deputies of the Parliament is the termination of the political party or termination of membership in the party based on the party list according to which the deputy of the Parliament of the Republic of Kazakhstan was elected.
We also on that during the voting process the electorate gives its votes not to a certain candidate included in the list, but a political party that advanced him. Therefore, having changed ones political views and having left a certain party, the deputy cannot represent the interests of electorate who voted for him. Therefore attribute of the deputy’s mandate to the candidate, but not the political party, incurs violation of declaration of will of the electorate citizens.
This recommendation does not directly relate to the provisions of the Document of Copenhagen Meeting. The above allows making a conclusion that this recommendation should be excluded.

9. In the opinion of the ODIHR/OSCE Mission (2004), legal acts touching upon the aspects of election process, e.g., the Law “On Political Parties”, Code on Administrative Offence, Law “On Fighting Corruption”, Law “On Mass Media” and others should be revised for the purpose of their relevancy to the Law “On Election in the Republic of Kazakhstan”.
Any discrepancies of the above legal acts with the Election Law were not found. Additionally, we not that according to Article 4 of the Law “On Legal Statutory Act”, in case of contradiction between the norms of the Law “On Election in the Republic of Kazakhstan” and the Laws “On Political Parties”, “On Mass Media”, and “On Fighting Corruption”, the priority will be given to the norms of the Constitutional Law “On Election in the Republic of Kazakhstan”. Thus, the principles of ensuring electoral rights of the citizens laid in it will be observed.
This recommendation also is not linked with the provisions of the Document of Copenhagen Meeting in 1990. The proposed recommendation should be excluded.

10. The ODIHR/OSCE Report suggested prior to presidential election to change the make-up of the Central Election Commission for the purpose of ensuring political balance, pluralistic representation and overall trust to the process.
The Central Election Commission has been formed in compliance with the norms of the Constitution and Constitutional Law “On Election in the Republic of Kazakhstan”. Following sub-clause 3) of Articles 56 of the Constitution of 13 April 2005 due to termination of the five year term of the Mazhilis of the Parliament at representation by the President new composition of the Central Election Commission was elected for the term of five years. Five members of the Central Election Commission are the members of different political parties, particularly, - the Party of Patriots of Kazakhstan, Agrarian Party of Kazakhstan, Civil Party of Kazakhstan, Communist Party of Kazakhstan, Republican Political Party “Otan”. It should be considered that the recommendation was implemented. At the same time it does not relate to the liabilities of the OSCE member countries on Document of Copenhagen Meeting.

11. The authors of ODIHR/OSCE Mission Report (2004) think, that the Central Election Commission should envisage regular and open meetings during election campaign and decision making following the principles of openness, transparency and observation of rules of law.
It should be noted that according to Article 20-1 of the Election Law the activities of the Central Election Commission, territorial, okrug and district election commissions during the whole election process is open and public. The fiduciaries, observers, representatives of mass media have right to be present at all stages of election process and get any information on election process from the election commissions on the day of voting since opening of election district for voting and until ascertaining the results of voting when counting the votes of electorate have right to have one fiduciary of each deputy at the same time, one representative of each mass media with the service ID and terms of the editorial staff, and one observer from each political party, public association, non-commercial organization of the Republic of Kazakhstan and observers of foreign states and international organizations.
The Central Election Commission during election campaign for election of the President of the Republic of Kazakhstan holds its meetings and other activities in open and public manner inviting representatives of mass media, international organizations, political parties and public associations of the Republic of Kazakhstan. The Resolutions, messages and other materials of Central Election Commission are published in mass media, place on web-site on Internet www.election.kz in Kazakh, Russian and English languages.
This recommendation does not directly relates to the liabilities of the Document of Copenhagen Meeting, however, it is implemented and being implemented in the Law on “On Election” and in practical activities of election bodies of the Republic of Kazakhstan.

12. ODIHR/OSCE Mission (2004) recommends having decisions of election commissions adopted timely in written form and be informed to the public.
Election Commissions are the state bodies. In their activities they are guided, besides the Election Law, by the norms of the Law “On Administrative Procedures”. That is why all decisions of election commissions are adopted in written form.
In turn, according to Article 20-1 of the Election Law the activity of election commissions is performed in public and open manner. Fiduciaries, observers, representatives of mass media have right to be present at all stages of election process, and get information on election process in election commissions. No one can restrain the rights of fiduciaries, observers and representatives of mass media provided by the Election Law.
This recommendation does not have link to obligations of the Document of Copenhagen Meeting, and this recommendation has been implemented in the Election Law, as the decisions of election commission are taken timely in written form and informed to the public. We consider the recommendation to be excluded.