Commentary to article 103. Obstruction of the right to conduct election campaigning The Code of the Republic of Kazakhstan on Administrative Offences
Obstruction of candidates for president, deputies or other elected positions, their proxies, and political parties in the process of exercising their right to campaign –
entails a fine for individuals in the amount of twenty, for officials, small business entities or non–profit organizations – in the amount of thirty, for medium-sized businesses - in the amount of forty, for large businesses – in the amount of fifty monthly calculation indices.
The right to pre-election campaigning, being an integral element of the subjective right to vote, inherently follows from the essence and legal nature of free elections. Free elections are an obligatory attribute of real democracy, they ensure the actual, active and permanent political and legal participation of citizens in solving all the most important issues of society. According to paragraph 22 of Article 33 of the Constitution of the Republic of Kazakhstan, "citizens of the Republic have the right to elect and be elected to state and local government bodies, as well as to participate in a national referendum."
However, as is well known, "it is not enough to recognize the rights, freedoms and duties of citizens in the Basic Law, it is necessary that citizens be able to exercise these rights and duties, using the social benefits provided for in the law and participating in their reproduction."
The disposition of the commented composition of the administrative offense is intended to protect the subjective right to campaign.
The general object of the offense is the established procedure for conducting election campaigning. The generic object of the offense is the social and legal relations that arise during the exercise of the subjective right to conduct election campaigning.
Article 28 of the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan" regulates the subjective right to campaign. The State guarantees citizens and public associations the right to freely campaign for or against a candidate or a political party in accordance with this Constitutional Law and other legislative acts of the Republic of Kazakhstan.
Citizens and public associations that do not establish electoral funds in accordance with this Constitutional Law have the right to conduct election campaigning that does not require financing.
From the moment of the end of the registration period established in accordance with this Constitutional Law and until the end of the campaigning campaign, candidates and political parties that have put forward a party list have the right to campaign and promote their election program in the press and other mass media.
Candidates and political parties that have nominated party lists are guaranteed equal access to the media for campaigning.
The State guarantees candidates equal allocation of funds to present their programs in the media. The procedure and amounts of funds allocated to candidates for speaking in the media are determined by the Central Election Commission.
Presidential candidates and political parties that have nominated party lists of candidates for deputies of the Mazhilis have the right to participate in pre-election debates on television organized by the Central Election Commission.
Political parties that have nominated party lists of candidates for deputies of maslikhats may participate in pre-election debates on television, which may be organized by the relevant territorial election commissions.
The procedure and conditions for holding pre-election debates, determined by the Central Election Commission, should be equal and should not create advantages for a particular candidate or political party.
The mass media, on a contractual basis, provide airtime and print space to registered candidates and political parties that have put forward party lists. The terms of the agreement on providing candidates and political parties that have put forward party lists with airtime and print space in the media should not create advantages for one candidate or another political party. Information on the amount of payment, conditions and procedure for the provision of air and printed space must be announced and published by the relevant media no later than five days before the start of the election campaign, as well as submitted to the Central Election Commission for the election of the President and deputies of Parliament, to other territorial election commissions for the election of deputies of maslikhats and members of other bodies. local government.
The information provided by the media on the amount of payment, conditions and procedure for the provision of air and printed space are posted on the Internet resources of the Central and territorial Election Commissions. The mass media may not provide airtime or print space for posting or distributing campaign materials of candidates, political parties that have nominated party lists before publishing information on the amount of payment, conditions and procedure for providing airtime and print space.
During the pre-election campaigning period, the circulation of periodicals related to the pre-election campaigning of candidates and political parties that have nominated party lists should be the same for all candidates and political parties that have nominated party lists.
Consent to the allocation of airtime or print space given by a mass media outlet to one of the candidates or a political party that has nominated a party list is consent to the allocation of airtime or print space to other candidates or political parties that have nominated party lists.
The order of presentation of candidates and political parties that have put forward party lists in the mass media is determined in the order in which written appeals are received or by drawing lots if the appeals were received simultaneously.
It is forbidden to interrupt and comment on candidates' speeches on television and on the radio immediately after the speech, as well as in print publications in the same issue.
Local executive bodies and local self-government bodies provide candidates with premises for meetings with voters on a contractual basis. The conditions for the provision of premises should be uniform and equal for all candidates.
Election commissions, together with local executive bodies and local self-government bodies, draw up a schedule of meetings of candidates with voters in a designated room and publish it in the mass media.
For the publication of posters, leaflets, slogans and other campaign printed materials, the relevant election commissions allocate an equal amount of money to candidates, except those running on party lists. All campaign printed materials must contain information about the organization that released these materials, the place of their printing and circulation, the persons who made the order, and the funds used to pay for it. The production of printed campaign materials outside the territory of the Republic of Kazakhstan and the distribution of anonymous campaign materials are prohibited.
Local executive bodies, together with the relevant election commissions, determine the locations for the placement of campaign printed materials for all candidates and equip them with stands, billboards, and bollards. Printed campaign materials are placed on conditions that ensure equal rights for all candidates.
Candidates have the right to post campaign printed materials in other places with the permission of the owner of the relevant facility.
It is prohibited to post campaign materials on monuments, obelisks, buildings and structures of historical, cultural or architectural value, as well as in the voting premises.
Information about candidates is posted in the premises of the election commission and the voting room in a single format with a photo of the candidate and a standard set of information established by the Central Election Commission.
Information about the political parties that have submitted party lists is posted in the premises of the election Commission and the polling station in a single format with a standard set of information established by the Central Election Commission.
Candidates and political parties that have put forward party lists have the right to pay expenses related to appearances in the media, holding public election events, publishing additional campaign materials, as well as to cover transportation and travel expenses from their election funds. It is prohibited to attract other money from other sources for this purpose, to accept any goods, works and services of individuals and legal entities used by the candidate during the election campaign that were not paid from the funds of the candidates' election funds, or to provide any assistance from the candidate to these individuals and legal entities for the provision of these services.
Individuals and legal entities providing services to a candidate or a political party related to election campaigning must have their written consent to accept the service. Persons who do not have written consent are liable in accordance with the laws of the Republic of Kazakhstan.
Candidates and political parties that have put forward party lists have the right to pay expenses related to appearances in the media, holding public election events, publishing additional campaign materials, as well as to cover transportation and travel expenses from their election funds. It is prohibited to attract other money from other sources for this purpose, to accept any goods, works and services of individuals and legal entities used by the candidate during the election campaign that were not paid from the funds of the candidates' election funds, or to provide any assistance from the candidate to these individuals and legal entities for the provision of these services.
Individuals and legal entities providing services to a candidate or a political party related to election campaigning must have their written consent to accept the service. Persons who do not have written consent are liable in accordance with the laws of the Republic of Kazakhstan.
Information subject to mandatory publication in accordance with this Constitutional Law is posted on the Internet resources of local executive bodies and election commissions. Periodicals publish messages from election commissions in the order and volume determined by the Central Election Commission, at the expense of funds provided by the republican and local budgets.
When publishing the results of public opinion polls related to elections, the media are required to indicate the legal entity that conducted the survey, the persons who ordered and paid for the survey, the time of the survey, the method of collecting information, the exact wording of the question, the number of respondents and the margin of error of the survey results.
Legal entities registered in accordance with the legislation of the Republic of Kazakhstan and having at least five years of experience in conducting public opinion polls may conduct a public opinion poll, having previously notified the Central Election Commission in writing with copies of relevant documents attached. The notification sent to the Central Election Commission contains information about the specialists involved in conducting the survey and having experience in this field, about the regions where public opinion polls will be conducted, and about the methods of analysis used.
The publication of the results of public opinion polls, forecasts of election results, other election-related research, and voting in support of candidates or political parties on the Internet is not allowed for five days before and on election day.
It is prohibited to conduct a public opinion poll on election day in a room or polling station. When qualifying for this offense, in addition to the Constitutional Law of the Republic of Kazakhstan "On Elections in the Republic of Kazakhstan", it is necessary to follow the "Rules for conducting election campaigning through the media and information support for the elections of the President of the Republic of Kazakhstan, deputies of Parliament, maslikhats of the Republic of Kazakhstan, as well as members of other local governments", approved by the resolution of the Central Election Commission of the Republic of Kazakhstan dated June 25, 2007, No. 90/178, paragraph 2 of which defines the concepts of "information support for elections", "pre-election campaigning", "pre-election debates", "speech".
Election information support is a set of measures aimed at promptly and widely informing voters about the preparation and conduct of an election campaign, with the exception of election campaigning.
Pre–election campaigning is an activity aimed at encouraging voters to vote for or against a candidate or political party in the election of the President, members of Parliament, maslikhat, as well as members of other local government bodies.
A speech is a personal appeal by candidates, authorized representatives of political parties and public associations who have nominated party lists and candidates, respectively, as well as proxies to voters outlining the election program.
An election debate is a public exchange of views between two or more presidential candidates, political parties that have nominated party lists of candidates for deputies of the Mazhilis, Maslikhat, on various socially significant issues, including those related to their election programs.
Thus, the objective side of the offense being commented on is expressed in actions (inaction) aimed at preventing candidates for president, deputies or other elected positions, their proxies, and political parties from exercising their right to campaign.
The subjective side of the offense can be expressed in the form of intent. However, it is possible that the offense may be expressed in the form of negligence.
The subject of the offense can be both individuals and legal entities.
In accordance with Part 1 of Article 805 of the Administrative Code, administrative offenses provided for in Article 103 of the Administrative Code relate to cases in which the prosecutor issues a decision to institute proceedings on administrative offenses.
According to Part 1 of Article 684 of the Administrative Code, cases of administrative offenses provided for in Article 103 of the Administrative Code are considered by judges of specialized district and equivalent administrative courts.
At the same time, a protocol on an administrative offense is not drawn up when individuals apply for restoration of violated rights under Article 103 of the Administrative Code. In this case, the case is considered by the court without drawing up a protocol on the offense (paragraph 4) of Part 1 of Article 807 of the Administrative Code).
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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