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Comment of the Central Election Commission of the Republic of Kazakhstan to the Statement of Preliminary Findings and Conclusions of the International Election Observation Mission at early presidential election in the Republic of Kazakhstan, dated as on 4 April 2011

Comment of the Central Election Commission of the Republic of Kazakhstan to the Statement of Preliminary Findings and Conclusions of the International Election Observation Mission at early presidential election in the Republic of Kazakhstan, dated as on 4 April 2011

Astana 15 April 2011

The Central Election Commission of the Republic of Kazakhstan expresses its gratitude to the International Election Observation Mission at early presidential election in Kazakhstan, which was composed of representatives the OSCE Parliamentary Assembly and OSCE/ODIHR Election Observation Missions, because the Mission gives positive assessment in the Statement of Preliminary Findings and Conclusions to the following aspects of early presidential election in the Republic of Kazakhstan (extracts from the Statement of Preliminary Findings and Conclusions are highlighted in Italics):

  1. The 3 April 2011 early presidential election in the Republic of Kazakhstan was held following a year of active international engagement of Kazakhstan as Chairman of the OSCE that culminated in the successful holding of the first Summit of Heads of State and Government in 11 years, which reaffirmed full adherence to OSCE commitments — page 1 (The Republic of Kazakhstan fulfilled the international commitments – provisions of Document of the Copenhagen meeting of the Conference on the Human Dimension of the CSCE of 29 June 1990 in respect to electoral democracy — hereinafter: the Copenhagen Document).
  2. The election was technically well-administered. Election commissions at all levels, including the CEC, handled the technical aspects of the election in a professional manner. Their regular sessions were open to observers and the media. The CEC provided extensive training and produced instructive training materials — pages 1, 2 and 4. The observer delegation of the Parliamentary Assembly of the Council of Europe separately from the International Election Observation Mission’s Statement of Preliminary Findings and Conclusions of 4 April 2011 noted in their statement with regard to both technical and political-organizational aspects of election that “The observer delegation of the Parliamentary Assembly of the Council of Europe (PACE) welcomes the orderly organization and conduct of the voting in the 3 April early Presidential election in Kazakhstan. Electoral officials conducted their work efficiently and, generally, demonstrated a high degree of professionalism. Polling stations observed were exemplarily well equipped for a good election, and the overall atmosphere was relaxed and business-like. The turnout was good, which testifies to public confidence in the process” (The Republic of Kazakhstan fulfilled its commitment before OSCE that “the will of people is the basis of authority of all government” – the provisions of paragraphs 6 and 7.3 of the Copenhagen Document have been fulfilled).
  3. Authorities made efforts to improve the electoral legislation and incorporate some OSCE/ODIHR recommendation— page 1 (The Republic of Kazakhstan has fulfilled its commitment before OSCE on harmonization of national laws and OSCE documents – provisions of paragraphs 4, 5.3 and 6 of the Copenhagen Document have been fulfilled).
  4. Political parties are entitled to nominate members of election commission — page 1 (The Republic of Kazakhstan has fulfilled its commitment before OSCE on granting the political parties with the legal guarantees to enable them to compete with each other on the equal basis – provisions of paragraphs 6, 7.6 and 7.7 of the Copenhagen Document have been fulfilled).
  5. Parties could appoint a non-voting member to each lower level commission for the election period – page 4 (The Republic of Kazakhstan has fulfilled its commitment before OSCE on granting full freedom to political parties – provisions of paragraphs 6, 7.6 and 7.7 of the Copenhagen Document have been fulfilled).
  6. Each candidate could register up to three proxies per precinct – page 4 (The Republic of Kazakhstan has fulfilled its commitment before OSCE on the conduct of election campaign in atmosphere of freedom – provisions of paragraphs 6 and 7.7 of the Copenhagen Document have been fulfilled).
  7. Efforts were made to improve the quality of the voter lists by conducting a large-scale door-to-door verification and ensuring public review — page 2; A nationwide electronic voter register is maintained by the CEC, which uses it to identify duplicate records — page 4 (The Republic of Kazakhstan has fulfilled its commitment before OSCE about providing citizens with universal and equal suffrage – provisions of paragraph 7.3 of the Copenhagen Document have been fulfilled).
  8. Compared to the 2005 presidential election, the media provided more equality in covering candidates in the news programs. Broadcast and print media provided by and large equal coverage of candidates in the news. OSCE/ODIHR EOM media monitoring results show that the state-owned broadcasters Kazakhstan TV and Khabar devoted 19 per cent and 13 per cent, respectively, to President Nazarbayev, while Mr. Akhmetbekov received 29 and 26 per cent, Mr. Kasymov 25 per cent and 28 per cent, and Mr. Yeleusizov 28 and 33 per cent. — pages 2 and 6. In addition it should be noted that the observer delegation of the Parliamentary Assembly of the Council of Europe thinks that “media behavior in the run-up to the election was more balanced than in the past, and that a broad voter awareness campaign had been conducted in the country” (The Republic of Kazakhstan has fulfilled its commitment before OSCE concerning the exercise of citizen’s right to freedom of expression, to unhindered access to the media without discrimination provisions of paragraphs 7.6, 7.7 and 7.8, 9.1 of the Copenhagen Document have been fulfilled).
  9. Women are well-represented in the election administration — pages 2, 7 (The Republic of Kazakhstan has fulfilled its commitment before OSCE about gender equality — provisions of paragraph 40 of the Document of the Moscow meeting of the Conference on the Human Dimension of the CSCE of 3 October 1991).
  10. Interethnic relations are stable and minority issues featured positively in the election campaign, reflecting the commitment of the state to a multi-ethnic society — page 2 (The Republic of Kazakhstan has fulfilled its commitment before OSCE concerning the exercise of national minorities’ rights in the political, electoral field provisions of paragraph 31 of the Copenhagen Document, paragraph 2.15 of Lund Recommendations on the Effective Participation of National Minorities in Electoral Process have been fulfilled (Warsaw, June 1999).
  11. Election Day was generally calm and a turnout of 90 per cent was reported — page 2 (The Republic of Kazakhstan has fulfilled its commitment before OSCE concerning the principle of free and general elections – provisions of paragraphs 6, 7.1 and 7.3 of the Copenhagen document have been fulfilled).
  12. The Kazakhstani authorities invited international observers in conformity with the OSCE commitments and without restrictions — page 2; The requirement for international observers to have prior election observation experience was removed from the law, in line with previous OSCE/ODIHR recommendations — page 8 (The Republic of Kazakhstan has fulfilled its commitment before OSCE to ensure international election observation – provisions of paragraphs 4 and 8 of the Copenhagen Document have been fulfilled).

The observer delegation of the Parliamentary Assembly of the Council of Europe completed its statement by the following conclusion: “PACE has observed elections in Kazakhstan in the past and is pleased to state progress from one election to another in this country. The delegation is united in its view that despite certain imperfections that invariably mar all elections in any country, the outcome of this vote truly reflects the will of Kazakhstan’s electorate”. In addition Mission of the Commonwealth of Independent States, Mission of Shanghai Cooperation Organization, independent observers from Belgium, France, United Kingdom, Italy, Denmark, the Netherlands, Turkey, Germany and other foreign states – altogether hundreds of professional international observers as well as thousands of domestic observers and proxies of presidential candidates gave their high positive assessment to the presidential election in Kazakhstan.

At the same time, the Central Election Commission of the Republic of Kazakhstan does not agree with the following preliminary findings and conclusions of the OSCE International Election Observation Mission at early presidential election and gives its own reasoning and arguments. Preliminary Findings and Conclusions are also highlighted in Italics.

  1. Needed reforms for holding genuine democratic elections still have to materialize as this election revealed shortcomings similar to those in previous elections (Section 1, page 1).

The CEC position. In 2005 OSCE/ODIHR Election Observation Mission issued 30 recommendations. Of them, the Central Election Commission of the Republic of Kazakhstan (hereinafter – CEC) considers that 20 recommendations have been implemented. In 2007 OSCE/ODIHR EOM has given 29 recommendations. Of them the CEC considers that 19 recommendations have been implemented. In total 39 of 59 all recommendations by OSCE/ODIHR EOM or 66 per cent have been implemented. There are 20 recommendations by OSCE/ODIHR EOM that cannot be implemented due to the following objective reasons:

1) 7 recommendations contradict or do not comply with the provisions of the Copenhagen Document or other OSCE documents;

2) 7 recommendations are formulated in unclear or vague language;

3) 6 recommendations do not comply with Kazakh election legislation and international electoral practice.

The CEC experts repeatedly and in detail provided an explanation to OSCE/ODIHR experts.

  1. The election was called shortly after the Constitution and the Election Law were hastily amended (Section 1, page 1). The February 2011 amendments to the Constitution and Election Law were adopted hastily, with the specific aim of allowing for an early presidential election. This constitutional change was based on short-term political considerations and adopted without comprehensive public debate (Section 2, page 3).

The CEC position. The amendments restored the norm about early presidential election, which has been excluded from the Constitution in 1998. They are not based on short-term political interests, since the constitutional norms have a permanent effect and will apply in the future. Constitutional changes do not infringe upon fundamentals of the Kazakh electoral system. In the contemporary international public law as well as in the OSCE rules there are no international legal norms, which condemn the rapid introduction of such changes in the laws of the country.

Political and economic issues in Kazakhstan have been publicly discussed during preparation for the referendum. Then the question was transformed into early presidential election. The OSCE Chairman-in-Office Audronius Ažubalis and High Representative for Foreign Affairs and Security Policy of the European Union Catherine Ashton welcomed the decision of the President of Kazakhstan not to hold referendum on the extension of his authorities and expressed support to the appointment of early presidential election. Therefore, the statement by the OSCE IEOM about the hasty amendments to the Constitution and Election Law is hardly appropriate.

  1. Opposition parties decided not to participate. The absence of opposition candidates and of a vibrant political discourse resulted in a noncompetitive environment. A limited field of candidates decided not to challenge the incumbent (Section 1, page 1).

The CEC position. All parties are equal and to call some of them as oppositional is incorrect. Participation of 4 candidates from 3 different political parties is the evidence of competitive political environment regardless the goals, pursued by one or another political party.

  1. The Election Law contains various ambiguities and gaps, which contributed to an inconsistent application of the law. The Central Election Commission did adopt guidelines but no formal regulations on aspects of the process, such as election-day procedures and the results tabulation (Section 1, page 1).

The CEC position. The Statement of IEOM on Preliminary Findings and Conclusions does not explain what kind of “various ambiguities and gaps contributed to an inconsistent application of the law”. We believe that the Kazakhstan Election Law does not have this kind of ambiguities and gaps.

The CEC recently adopted a considerable number of by-laws (regulations) that were the official instructions for the lower-level election commissions during the last presidential election:

  1. CEC Regulation of 9 July 1999 “On handling citizens’ complaints and appeals on the violation of election law”;
  2. CEC Regulation of 7 August 1999 “On the approval of instructions of the Central Election Commission of the Republic of Kazakhstan” (Instruction of compiling and transfer of protocols on voting results by precinct, district, territorial election commissions);
  3. CEC Regulation of 2 October 1999 “On the rules for storage, transfer, archiving and destruction of documents related to the preparation for and conduct of elections of the President, deputies of the Parliament of the Republic of Kazakhstan”;
  4. CEC Regulation of 4 September 2004 “On samples of ballot-boxes”;
  5. CEC Regulation of 31 August 2005 “On the procedure for establishment of fluency in the state language by a candidate to President of the Republic of Kazakhstan”;
  6. CEC Regulation of 25 June 2007 “On the approval of information about candidates to Presidents, deputies of the Senate of Parliament, political parties nominated party lists, candidates to deputies of the Mazhilis of Parliament to be elected by Assembly of the People of Kazakhstan, maslikhats, members of other bodies of local self-government to be posted in the premise of polling station in the single format”;
  7. CEC Regulation of 8 April 2009 “On the approval of Rules on the procedure for issuance and account of absentee voter certificates”;
  8. CEC Regulation of 19 August 2010 “On the approval of Instruction on the state registration of election funds”.

The CEC has published as a compendium of some normative legal acts of the Republic of Kazakhstan and regulations of the Central Election Commission of the Republic of Kazakhstan for organizing and holding early election of the President of the Republic of Kazakhstan, appointed as on 3 April 2011, which included the above mentioned regulations.

This compendium was sent to all the country’s election commissions and was handed to each observer of foreign state and international organization, who has been accredited by the CEC.

Over 15 years of its functioning the Constitutional Act of the Republic of Kazakhstan “On election in the Republic of Kazakhstan” of 28 September 1995 (hereinafter – Election Law) has been amended 12 times, resulting in 780 changes and additions. The general trend for the development of Kazakh legislation is that now a legislator tries to provide a detailed regulation of social relations in the text of law leaving no room to by-laws. In this regard we emphasize that Article 41 (organization of the vote) of the Election Law consists of 18 paragraphs, Article 42 (conduct of the vote) – 11 paragraphs, Article 43 (vote count) – 39 paragraphs, Article 44 (tabulation) – 10 paragraphs.

  1. The legal framework continues to include major inconsistencies with OSCE commitments such as restrictions on freedom of assembly, including the requirement to obtain approval for meetings; restrictions on freedom of expression; and lack of due process guarantees in the complaints and appeals framework to ensure effective legal redress (Section 2, page 3).

The CEC position. There are no unreasonable restrictions with regard to freedom of assembly and freedom of expression. The requirement to obtain approval to hold rallies is a reasonable restriction, since the notification procedure for rallies could lead to stoppage of traffic on main, vitally important city streets, or disturb the peace and appropriate treatment of patients in hospitals, or disturb the educational activities in schools, colleges and universities. In other words the uncontrolled use of the right by some people may violate the rights of others. This kind of conflict can and must be regulated by state bodies. Freedom of speech and freedom of assembly are guaranteed in the Constitution of the Republic of Kazakhstan of 30 August 1995 (Articles 20 and 32), in Kazakh Law of 17 March 1995 “On the procedure for organizing and conducting peaceful meetings, rallies, marches, pickets and demonstrations in the Republic of Kazakhstan”. At the same time they contain some restrictions (in the interests of public and state security, protection of health, the rights and fundamental freedoms of others), which comply with the Syracuse Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (UN Document Е/С 4/1985/4, Annex (1985).

Assessment by IEOM about lack in Kazakhstan of “due process guarantees in the complaints and appeals framework to ensure effective legal redress” does not represent the real facts. In fact, the settlement of disputes is based on detailed provisions of Kazakh legislation. Appropriate legal procedural safeguards for handling complaints and appeals necessary to ensure effective legal redress are contained in the Code of Civil Procedure of the Republic of Kazakhstan of 13 July 1999. Almost each of 450 Articles of this Code provides directly or indirectly the due legislative procedural safeguards for handling complaints and appeals (including electoral matters), necessary to ensure effective legal protection. We would like to draw attention to such articles of this Code, which effectively guarantees legal redress to all stakeholders, including those who involved in the process of electoral disputes, such as Articles 5-23 (principles of civil justice), Articles 123-128 (procedural deadlines), Articles 174-216 (trial proceedings), Articles 278-282 (proceeding on challenging decisions and action (inactions) of state authorities, officials and public servants).

The core Law of the Republic of Kazakhstan of 12 January 2007 “On the Procedure on Handling Appeals of Physical Persons and Legal Entities”, which consists of 18 detailed articles, is also on guard for the substantive and procedural protection of rights of all persons, including those whom we call the stakeholders of electoral process. It should be noted that based on the norms of this legislation all applicants received reasoned responses.

  1. Provisions that also make the legislative framework fall short of the international good practice include, for example, lack of clear objective criteria for evaluation of candidates’ Kazakh language proficiency (Section 2, page 3). The Kazakh language test presented an obstacle for some candidates (Section 2, page 5).

The CEC position. The official interpretation of Clause 2 of Article 41 of the Constitution of the Republic of Kazakhstan (the Resolution of the Constitutional Council of the Republic of Kazakhstan N. 9/2 of 9 October 1998) establishes that the norm “fluent in the state language” must be understood as the ability to read, write correctly, easily, to express their thoughts without difficulty and speak freely in Kazakh language. This should be attributed to the criteria for evaluation of Kazakh (state) language proficiency by presidential candidates.

Objective criteria for the conduct of tests are established in the CEC Resolution N. 12/26 of 31 August 2005 “On the Procedure for Establishing Fluency in the State Language by a Candidate to Presidents of the Republic of Kazakhstan”.

To establish the state language proficiency it was required: 1) to do a written work of no more than two pages; 2) to read the printed text of no more than three pages; 3) to make a public speech on the requested topic of no more than fifteen minutes. Errors made during the exam were regularly brought to the attention of candidates and the media. One of the written works of two pages with dozens of grammatical mistakes was shown at television.

Linguistic commission was established from among leading linguists of the Republic. All members of linguistic commission are doctors of philology and are prominent scientists in the field of Kazakh philology.

  1. а) In its session on 15 March, the CEC refused to register the OSDP representative to the CEC, based on the position of the Prosecutor General’s office that parties were not eligible to have representatives at the CEC since CEC members are not party-nominated. Such narrow interpretation of the law is of concern given the lack of guarantees for party representation in the election commissions (Section 2, page 4).

The CEC position. In its previous Comments to the OSCE/ODIHR Interim Reports the CEC gave an explanation to OSCE/ODIHR EOM about correct interpretation of the Election Law with respect to representation of ANSDP in the CEC. Nevertheless, the OSCE/ODIHR EOM presents this fact as “narrow (literal) interpretation of the law”. However, it is not true. The broad, convincing interpretation with respect to representation of political parties in the CEC was based on Articles 44 and 57 of the Constitution (basic law) of the Republic of Kazakhstan. And interpretation by the OSCE/ODIHR EOM of the fact of non-representation of political parties in the CEC as “lack of guarantees for party representation in the election commissions” appears to be incorrect.

First, the norms of Clause 6 of Article 20 of the Kazakhstan Election Law establish guarantees for party representation in election commissions”.

Secondly, these legal norms are implemented in practice during the early presidential election: 1,909 persons, representing Democratic Party of Kazakhstan “AK ZHOL” (107 members), Communist Party of Kazakhstan (107 members), Democratic Party “AZAT” (12 members), All-National Social Democratic Party (1,414 members), other political parties (several dozens members) sent their representatives to territorial and precinct election commissions across the country as members of commissions in an advisory capacity.

b) Lack of guarantees for inclusive pluralistic representation on election commissions at all levels (Section 2, page 3). Representation of opposition political parties in election commissions was low (according to data provided by the CEC, Ak Jol, Azat, the Communist Party and the OSDP were together represented by only six per cent of all election commission members), while the majority of members of many commissions was de facto affiliated with Nur Otan (OSCE/ODIHR EOM LTOs reported such cases, in particular in Akmola, Almaty, East and South Kazakhstan, Kostanai, Kyzylorda, Pavlodar and Zhambyl regions) (Section 2, page 4).

The CEC position. Election commissions provided sufficient guarantees for inclusive pluralistic representation. Guarantees to ensure equal conditions for the conduct of electoral campaign are secured by law and put into practice. These guarantees are stipulated by Clause 2 of Article 10 of the Kazakhstan Election Law.

With the exception of the CEC all seven members of each election commission are elected by maslikhats based on the proposals by political parties. Due to the fact that the number of political parties is not constant it is impossible to guarantee representation of all political parties in election commissions in accordance with the established procedure.

It should be noted that political parties have not been always active in the nomination of their candidates due to the fact that some parties do not have sufficient number of members and activists.

The CEC has presented to OSCE/ODIHR EOM the information about party representation in election commissions of all levels, formed in 2009.

Once again we bring to the attention of the OSCE/ODIHR EOM the information about the number of nominated and elected party candidates in 13,286 territorial, district and precinct election commissions.

N

Name of the political party nominated candidates to election commissions

Number of nominees and its percentage to the total number of election commissions

Number of elected members of election commissions and its percentage to the total number of nominated candidates

1

People’s Democratic Party “Nur Otan” (PDP “Nur Otan”) 13,239 or 99.6 % 13,222 or 99.9 %

2

Kazakhstan Social-Democratic Party “Aul” (KSDP “Aul”) 12,576 or 94.7 % 12,437 or 98.9 %

3

Communist People’s Party of Kazakhstan (CPPK)

11,971 or 90.1 % 11,789 or 98.5 %

4

Party of Patriots of Kazakhstan

11,914 or 89.7 % 11,811 or 99.1 %

5

Party “Rukhaniyat”

11,806 or 88.9 % 11,711 or 99.2 %

6

Democratic Party “Adilet”

9,699 or 73.0 % 9,609 or 99.1 %

7

Communist Party of Kazakhstan

4,118 or 31.0 % 3,864 or 93.8 %

8

Democratic Party “AK ZHOL”

1,590 or 12.0 % 1,541 or 96.9 %

9

All-National Social-Democratic Party (ANSDP)

761 or 5.7% 603 or 79.2 %

As the table shows in 2009 among all political parties the highest activity was demonstrated by PDP “Nur Otan”, KSDP “Aul”, CPPK and Party of Patriots of Kazakhstan, which nominated candidates to election commissions of all regions of the Republic. Among the ten registered political parties DPK “AZAT” nominated its representatives to none of the election commissions.

Pursuant to the requirements of the election law during formation of election commissions the priority was given to the proposals of political parties. As it is seen from the table of nominated by political parties candidates to members of election commissions of all levels in 2009 party “AK ZHOL” nominated 1,590 candidates (of them 96.9% have been elected); party “AZAT” – 0 candidates; party “Aul” – 12,576 candidates (98.9%); party “Adilet” – 9,699 (99.1%); Communist People’s Party of Kazakhstan – 11,971 (98.5%); Communist Party of Kazakhstan – 4,118 (93.8%); party “Nur Otan” – 13,239 (99.9%); ANSDP – 761 (79.2%); Party of Patriots of Kazakhstan – 11,914 (99.1%); party “Rukhaniyat” – 11,806 (99.2%), i.e. practically all of them joined the country’s election commissions. In addition, in the current 2011 year more than 150 members – representatives of party ANSDP joined election commissions in the city of Almaty.

As we can see, the principle of fair account of interests of each party has been met. The mentioned by OSCE/ODIHR EOM oppositional parties ANSDP, Communist Party of Kazakhstan, “AK ZHOL” and “AZAT” have not demonstrated sufficient activity in the nomination of candidates to election commissions. For example, ANSDP failed to nominate candidates in election commissions in 14 regions of total 16, Communist Party of Kazakhstan has not nominated candidates in 2 regions, “AK ZHOL” in 13 regions.

Moreover, we must bear in mind that all this happened in 2009, where there was no any hint of election campaign and the question of boycotting by any party of any election was not in the agenda. Of course, it was not the fault of authorities. In those regions where representation of political parties was low the vacancies in election commissions were filled by representatives of public associations (trade unions, associations of legal entities) and appointed by the higher election commissions. As we can see the formation of election commissions was carried out on a broad democratic basis. In 2009 during the formation of election commissions appeals about the facts of unreasonable refusal to include representatives of political parties in the election commissions have not been filed.

To ensure greater transparency in the electoral process all parties in compliance with Clause 6 of Article 20 of the Election Law have been provided with opportunity to join the election commissions in advisory capacity. For example, 1,414 members of party ANSDP and 12 members of party “AZAT” worked at the presidential elections in this capacity. In this regard the statement of the authors of Preliminary Findings of IEOM about “lack of trust in the impartiality of the election administration”. In Western Europe electoral work during elections is carried out by ministries of interior and as a rule the parties are not involved in the work of election commissions. Nevertheless the question about “partiality of election administration” has never been raised.

  1. а) Many local authorities intervened in the election process in order to increase turnout. One public official was dismissed for violating the law (Section 1, page 2).

The CEC position. Law enforcement agencies of the Republic of Kazakhstan monitored the election campaign in order to prevent a violation of legislative electoral norms. When such a violation has occurred, the prosecutor office in West-Kazakhstan oblast responded quickly: upon its presentation a deputy chief of oblast healthcare division, who signed an order to ensure a high voter turnout, has been dismissed from his position. According to the Republic’s General Prosecutor Office facts about attempts of local executive bodies to increase the voter turnout were reported in the city of Almaty and Karagandy oblast: the follow-up examination revealed that letters about these facts were forged. If the OSCE/ODIHR EOM has other written evidence about increasing the voter turnout we are ready to get acquainted with them and to start official investigation.

We are convinced that the high voter turnout (89.9%) was the result of, firstly, recognition by every voter — a citizen of the Republic of Kazakhstan of high responsibility for his/her Fatherhood, for his/her own future; secondly, interesting and convincing program documents of the presidential candidates; and thirdly, daily thought-out press reports, Internet portals and TV and radio broadcasts (2,709 different media sources covered election issues in the country in one way or another).

b) Insufficient requirements for transparency in the tabulation process, e.g. with regard to the publication of polling station-level results protocols (Section 2, page 3).

The CEC position. Election law does not stipulate publication of protocols on voting results at the level of polling stations. However, according to Clause 8 of Article 43 of Election Law copy of protocol of the precinct election commission must be immediately posted at the polling station in the specially designated place for public familiarization and must be kept in there for two days. By the request of a person, who is present during vote count, he/she can be issued with a copy of protocol, certified with signatures of chairman and secretary of the commission as well as with the commission’s seal.

In compliance with Clause 1 of Article 62 of this law the vote count results at presidential election must be established at the session of territorial election commission and drawn up in the protocol, which has to be sent to the CEC, the latter according Clause 1 of Article 65 of Election Law shall establish the results of presidential election based on these protocols. The final protocol shall be published in the mass media and posted at the web-site of the Central Election Commission of the Republic of Kazakhstan.

  1. According to the Election Law, an election commission may not consist of people from the same organization. The CEC interpreted this provision as only prohibiting all seven members being from the same organization. The OSCE/ODIHR EOM noted a number of cases where the decision-making majority of commission members were employed by the same organization. OSCE/ODIHR LTOs reported that such practice was widespread in Astana and Almaty cities, Pavlodar, Akmola and Almaty regions (Section 2, page 4).

The CEC position. Clause 9 of Article 19 of the Kazakhstan Election Law says that “an election commission may not consist of employees from one and the same organization”. However, the law does not stipulate the necessity to establish an election commission based on the percentage of people from different organizations. Representation of even one commission member, who comes from a different organization, ensures compliance with this legal provision. Thus, the situation when “majority of commission members are employees of the same organization” is not a law violation.

  1. The number of registered voters increased from 9,101,000 to 9,181,700 before Election Day (Section 2, page 4).

The CEC position. The number of registered voters 9,101,000 was given for
1 January 2011. By the Election Day, it has changed due to objective reasons. Firstly, within the period of January and early April, the number of people who reached 18, increased each day. Secondly, the voters who were not earlier included into the voter lists, have been included based on the submission of their house-registers.

  1. In these cases, there was no mechanism for temporarily excluding these voters from the voter lists at their place of residence (Section 2, page 4).

The CEC position. According to Clause 6-1 of Article 41 of the Election Law, where a voter changes his residence within the period of submission of the voter list for public access and the election day, a PEC issues an absentee voter certificate, upon his request and upon submission his identity card. At this, a relevant note is made in the voter list. Upon submission of the absentee voter certificate, a PEC includes the voter into the voter list on the day of election at the place of his location. An absentee voter certificate is not issued to voters wishing to participate in voting in a different election district or at a different polling station within one settlement. Absentee voter certificates stop to be issued at 18 o’clock local time of the day, preceding the voting day.

In other words, the mechanism stipulated by Clause 6.1 of Article 41 of the Election Law, was followed and implemented.

  1. а) Signature verification process lacked transparency. TEC verification protocols contained no reasoning for the invalidation of signatures (notes in the footnote: In Almaty city, West Kazakhstan and Kostanai TEC protocols regarding all four registered candidates. In Kostanai, West Kazakhstan and South Kazakhstan TEC protocols regarding Mr. Duambekov. In West Kazakhstan TEC protocol regarding Mr. Sapargali), and candidates or their proxies were routinely not invited to attend the verification procedures (notes in the footnote: Reported by the proxies of Mr. Akhmetbekov in North, South and West Kazakhstan regions, of Mr. Sapargali in West Kazakhstan region, of Mr. Duambekov in Kostanai region. TEC of Akmola region acknowledged that no proxies were invited to observe the verification procedure) (Section 2, page 5).

The CEC position. The above mentioned presidential candidates could have appealed the actions of the TECs of the mentioned regions at court. As they did not appeal to judicial bodies, it’s difficult to consider their statements as representing the facts; moreover, heads of TECs assert that their work related to verification procedure was transparent and in compliance with law.

Thus, the letter N. 47 of 13 April 2011 signed by A. Khamzin, Chairperson of the West Kazakhstan TEC, says that the candidates’ proxies were invited to the TEC meeting to consider the verification procedure, but they did not show up, and were satisfied by “getting a protocol on verification of signatures supporting this or that candidate”. The letter ends with the statement that “no pretensions were made by them on the results of the verification procedure.”

A. Markova, Chairperson of Kostanai TEC informs through her letter N. 66 of 13 March 2011 “All proxies were notified on the time and place of the verification procedure. However, not all of them showed readiness to attend due to the time-consuming procedure. Many of the proxies attended the verification procedure.” The letter ends with the following summary, “Absence of complaints and appeals from the candidates’ proxies regarding the verification procedure proves that the proxies did not face obstacles in observing this procedure”.

According to the official information of A. Shayakhmetov, Chairperson of Akmola TEC (letter N. 41 of 14 April 2011), and of A. Kalykova, Secretary of Almaty TEC, neither candidates, nor their proxies showed initiative, in writing or orally, to participate in the verification procedure; no complaints were received, in writing or orally, regarding irregularities in exercising the verification procedure.

CEC is planning to thoroughly modify the verification procedure based on the OSCE EOM recommendations, and to raise this issue on the legislative level.

b) Some of public meetings took place without impediments. In other instances, such as the 28 March protest meeting in Astana participants were intimidated and prevented from traveling. Notes in the footnote: Two activists were sentenced to several-day jail penalties in Aktobe (Martuk district court) and in Kostanai. Police detained an activist for several hours in Kokshetau, intimidated activists in Almaty City, Almaty region, Taraz and Aktobe, and visited some to question them about planned trips in Pavlodar and Kostanai. Vehicles and buses carrying activists were stopped in Taraz, Kostanai and Akmola region (Section 2, pages 5-6).

The CEC position. Regarding arresting 2 activists in Aktobe and Kostanai, we keep getting contradictory information, and therefore ask the OSCE/ODIHR EOM to provide us with more concrete information, preferably specifying the names of the arrested people. The Ministry of Interior of the Republic of Kazakhstan informed through its letter N. 1-05-93/1095u, that the Departments of Interior of Almaty City, Akmola, Aktobe, Almaty, Jambyl and Kostanai regions did not receive any appeals or complaints regarding cases of violation of Constitutional rights of the activists of the unregistered Party “Alga” by the police, such as visiting activists, stopping vehicles carrying activists, or other actions within the election campaign. In case of appealing and considering such actions of the policemen, the situation could have been to some extent or quite different.

  1. The incumbent did not campaign personally and delegating the task to Nur Otan instead. No apparent distinction was made between the incumbent as a candidate and his position as president (Section 2, page 5).

The CEC position. The first apparent distinction: the incumbent did not campaign personally with other candidates. The second apparent distinction: the materials related to the incumbent as a candidate and published in the press, consisted of the publishers’ imprint, while the materials related to the incumbent’s activity did not contain such data. The third apparent distinction: the materials related to the incumbent as a candidate were of advertising-propaganda nature both in content and form, while the materials related to the incumbent were of purely information nature.

As you know, Presidents of the USA, France and other foreign states campaigning for the second time, do not suspend their incumbent official duties and continue acting as both incumbents and candidates campaigning personally, in parallel. In this light, it’s not clear for us why such question arose with regard to the President of the Republic of Kazakhstan.

  1. а) Freedom of speech is guaranteed by the Constitution but effectively restricted by constitutional provisions protecting “honor and dignity” of every person (further in the footnotes: In addition, Article 46 stipulates the “inviolability” of the honor and dignity of the president), and by the criminalization of defamation and insult. The fact that defamation of the president still can result in imprisonment, as well as exorbitant fines for defamation under provisions in the Civil Code, induce self-censorship (Section 2, page 6).

The CEC position. Defamation and insult of persons are referred to criminal offenses in many countries, including in OSCE participating States, and entail various sanctions (from fines to criminal prosecution).

These mechanisms can not be considered as measures restricting freedom of speech or activity of editors and journalists critical of the authorities. For instance, within the campaign period, 29 articles with critical remarks against the incumbent were published in various mass media. However, none of the authors and editors was punished. There is apparent distinction between criticism and insult of the president; therefore, while criticizing the incumbent in the mass media, the journalists do not expose themselves to self-censorship. Provisions of the Civil Code of the Republic of Kazakhstan of 27 December 1994 (General Part) and of 1 June 1999 (Special Part) could not and can not induce self-censorship even more just because none of 1,124 Articles of the Code stipulates the size of the fines or “exorbitant” fines, erroneously mentioned by the Mission in its Statement.

b) Furthermore, a genuinely independent broadcaster remains to be established as substantial state subsidies undermine the independence of both state and private media (Section 2, page 6).

The CEC Position. The Mission’s statement that “genuinely independent broadcaster remains to be established as substantial state subsidies” does not represent the real facts. Actually, 10 from 11 acting broadcasters are non-state, independent. Broadcasting companies in Kazakhstan are predominantly privately owned ones: out of total 63 TV companies 52 (or 82.5%) are private, and out of total 42 radio companies 37 (or 88.1%) are privately owned ones.

c) The accounts of the Uralskaya Nedelya newspaper were seized and its property was confiscated in order to pay civil damages in a libel case against the newspaper. After the case was raised by international institutions, the plaintiff renounced the damages awarded against the newspaper. See: Regular report of the OSCE Representative on Freedom of Media to the OSCE Permanent Council of
16 December 2010 (
http://www.osce.org/fom/74598) and of 17 March 2011 (http://www.osce.org/fom/76158). On 3 March, the same newspaper was fined KZT 20 million (approximately 100,000 EUR) in civil damages in a separate case (Section 2, page 6).

The CEC Position. It’s not clear why the problems of the “Uralskaya Nedelya” newspaper awoke the Mission’s interest. Claim relations between the newspaper and the private company emerged far before the election campaign. The newspaper did not cover electoral topics, and did not have any election-related issues. State bodies do not have anything to do with its problems. The fine of 20 million Kazakhstan tenge (94,047 Euro) may raise concern with the OSCE Mass Media Division, but in no way with the Mission which competency is restricted to observance over the elections; moreover that the fact of fining has nothing to do with voting complaints and disputes. By the way, the newspaper is still being published. We also inform that on 16 April 2011, the Law “On Amendments and Additions to Certain Legal Acts of the Republic of Kazakhstan on Improving the Civil Legislation” comes into effect in Kazakhstan. This legal document excludes recovery of moral damage by legal entities. For journalists and mass media this means that from now on, legal entities can not claim moral damages in cases of protection of honor, dignity and business reputation.

d) The blockage of websites, e.g. of the independent newspaper Respublika and the TV channel K+, remains a concern (Section 2, page 6).

The CEC Position. As for the blockage of or restricted access to the “Respublika” newspaper websites, this has nothing to do with the interference by the state: such interference is possible only based on the court decision. The state did not and does not initiate any judicial proceedings. At the same time, this website can be easily and freely accessed through numerous website “mirrors” on popular public networks and blog-platforms, which are open for public. In addition, the “Respublika” newspaper is in free trade throughout the country.

  1. Consequently, media monitoring results revealed a significant lack of analytical election-related programs, such as debates, interviews and discussions, which could have offered voters a wider range of views to make a fully informed choice. The CEC’s interpretation of the law stifled political debate on matters of public interest in the media (Section 2, page 6).

The CEC Position. According to the Ministry of Communication and Information of the Republic of Kazakhstan (letter N. 11-01-11/5555 of 13 April, 2011), the mass media published and conducted 49 analytical election-related programs. The candidates’ positions were covered by 5,325 materials and 1,533 video-rolls. All 4 candidates were provided with full right for campaigning with use of all mass media tools, including participation in debates both in state-owned and private channels. This gave them the opportunity to broadly cover their election programs through 1,318 mass media materials. Debating materials and election-related interviews were broadly covered by the Kazakhstani newspapers, such as “Delovaya Nedelya”, “Respublika”, “Svoboda Slova”, “Vremya”, “Vzglyad”, “Dat”, “Panorama” etc. Lack of the “black PR” has become one of the achievements of the campaign. Thus, the mass media managed to provide the voters with a wide range of various views, so that they could make their choice thanks to full information available. Practically, each citizen of the country made his choice. All this are considerable figures and facts for Kazakhstan – a young country of the election democracy.

  1. Equal participation of women and men, including in the electoral process is provided by law. Women are actively involved in political life but few hold leadership positions and there was no female candidate in this election (Section 2, page 7).

The CEC Position. Percentage of women representation in the senior elective posts corresponds to the level of their participation in the elections as candidates. Thus, from the 18 initial nominees in the 2005 presidential election, three were women (16.7% of the total candidate numbers). In the early 3 April 2011 elections, of the 22 nominees, four were women (18.2%). The total number of women in all election commissions throughout the country, including precinct commissions, makes 43,260 (62.8%), while the number of men makes 26,086 (37.2%).

Strict observation of the provisions of the Law on the State Guarantees of Equal Rights and Equal Opportunities for Men and Women of 8 December 2009, as well as implementation of the state gender policy and the Strategy on Gender Equality in the Republic of Kazakhstan for 2006-2016 will contribute to increase the number of women in the state elective bodies.

  1. Kazakhstan is a multi-ethnic country comprised of some 100 ethnic groups (further in the footnote: According to the 2009 census, 63.1 per cent of the population is Kazakh. Russians, who are the largest minority, account for 23.7 per cent. The second largest minority are Uzbeks (2.9 per cent) concentrated in South Kazakhstan. Other groups include Ukrainians (2.1 per cent), Uyghurs (1.4 per cent), Tatars (1.3 per cent), and Germans (1.1 per cent). According to information from the CEC, 73.1 per cent of all election commissioners are Kazakhs, while 16.7 per cent are ethnic Russians, 1 per cent is ethnic Uzbeks, and 0.7 per cent is Uyghurs. However, national minorities are less represented in senior positions of election commissions (Section 2, page 7).

The CEC Position.

National minorities who are citizens of Kazakhstan, have full right for passive and active voting, and for taking senior positions, both in local and state bodies, along with native citizens of the country. Senior positions in the election spheres in state bodies are taken by persons belonging to Kazakh, Russian, German, Korea, Uzbek and other nationalities. The percentage is as follows: senior positions (chairperson, deputy chairperson, secretary) in all 16 TECs, Astana and Almaty election commissions are taken by Kazakhs – 68.7 per cent (63.1 per cent of the population is Kazakh); Russians — 25% (Russians account for 23.7 per cent of the population); Ukrainians – 4.1 per cent (Ukrainians account for 2.1 per cent of the population); Germans – 2.1 per cent (Germans make 1.1 per cent of the population). The percentage of national minorities in the lower-level election commissions varies depending on the density of relevant minorities living in relevant regions throughout the country. As we can see, the OSCE Mission’s statement on small representation of national minorities in senior positions of election commissions is not justified.

The ratio of the quantity of national minorities’ citizens and the quantity of people represented in election commissions is more or less proportionate. Thus, according to the statistics provided by OSCE/ODIHR, the Kazakhs made and make 63.1 per cent of the population; Russians — 23.7 per cent; Uzbeks — 2.9 per cent; Ukrainians — 2.1 per cent; Uyghurs — 1.4 per cent; Tatars — 1.3 per cent; and Germans — 1.1 per cent. At the same time, 92,950 members of election commissions represent 59 nationalities, of which the Kazakhs make 67,585 members (72.7 per cent); Russians – 15,845 (17 per cent); Ukrainians – 3,118 members (3.4 per cent); and Germans – 1,298 members (1.4 per cent); Tatars – 912 (1 per cent); Uzbeks – 901 members (1 per cent); Uyghurs – 658 members (0.7 per cent; Byelorussians – 595 members (0.6 per cent). Thus, the ratio of election commissions’ members based on their nationality corresponds in general, to the ratio of the quantity of national minority to the total population of the Republic of Kazakhstan.

  1. The Election Law does not establish a clearly defined complaints and appeals process with a single hierarchical structure of responsibility. There is a lack of understanding and no consistent interpretation of the election dispute process. Complaints against decisions and (in)actions of election commissions can be submitted to a higher election commission and/or court, and other complaints on violations of the election law can be filed with election commissions, courts, and/or prosecutor’s offices. District courts are the first instance in all civil cases, except for two types of election-related cases which go directly to the Supreme Court with no right of appeal (Section 2, page 7).

The CEC Position.

The Election Law does not establish a complaints and appeals process. And actually, the Election Law should not provide for such procedures. These aspects are regulated by the special Law of the Republic of Kazakhstan “On the Procedures for Handling Appeals of Physical Persons and Legal Entities” of 12 January 2007
(18 Articles), by the Civil Procedure Code of the Republic of Kazakhstan of 13 July 1999 (450 Articles, of which 40 Articles directly deal with the process for filing and handling complaints and appeals against actions of state bodies, including on election issues); by the Criminal Code of the Republic of Kazakhstan of 13 December 1997
(577 Articles, of which 7 Articles directly relate to the appeal process against actions of state bodies).

The complaints process established by the Kazakhstan law does not differ from that used worldwide. The OSCE Mission has rather promptly and easily understood this process, and has correctly interpreted it in its Statement, “Complaints against decisions and (in)actions of election commissions can be submitted to a higher election commission and/or court, and other complaints on violations of the election law can be filed with election commissions, courts, and/or prosecutor’s offices.”

Indeed, physical and legal persons are entitled to independently decide with which body to file a complaint. This may be an election commission, a prosecutor’s office or a court. Again, this is their independent choice. It should be noted that a preliminary appeal to the election commission or to a prosecutor office is not a prerequisite for filing a complaint with the court. In this regard, free use of their rights by the participants of the appeal process should not be considered as lack of understanding of the process of considering election-related disputes and its uniform interpretation.

The Mission incorrectly interprets the process regarding “two types of election-related cases” saying that they can not “go directly to the Supreme Court” as they have “no right of appeal”. It should be taken into account that Article 274 of the Civil Procedure Code of the Republic of Kazakhstan does not stipulate advocating and cassation appeal with regard to only those decisions for which the appeals were recognized as justified. For instance, Mrs. B-va filed an appeal with the Semey City TEC to repeal the protocol. Being rejected, she applied to the Semey City court which issued a rejection resolution on 31 March 2011. She appealed this resolution in East Kazakhstan regional court, but the Board of Appeals of the regional court issued a resolution on 2 April 2011 declaring the resolution of the Semey City court as justified. And according to Article 274 of the Civil Code, it is these kind of resolutions and decisions of regional courts that are considered final and are not subjected to be appealed in the Supreme Court of the Republic of Kazakhstan. In this case, the legislators proceeded from the assumption that where the appeal regarding certain election-related aspect is recognized as justified (for instance, the resolution is made in the applicant’s favor), it must be executed immediately, without appealing it in the Supreme Court of the Republic of Kazakhstan.

  1. Opposition parties and some NGOs expressed a lack of trust in the authorities to act impartially and effectively in addressing election complaints. The adjudication of election disputes generally lacked transparency, due process, and well-reasoned decisions, thus impairing the opportunity for effective legal redress (Section 2, page 7).

The CEC Position. We consider this comment subjective. All the appeals and complains received by the CEC and other state bodies were addressed in compliance with Kazakh legislation. And the legislation regulating this issue is rather extended and consists of a number of legal documents. Thus, the process of addressing appeals and complaints by the CEC is regulated by the Law “On Administrative Procedures” of 27 November 2000 and by the Law “On the Procedure for Handling Appeals of Physical Persons and Legal Entities” of 12 January 2007.

The timeframe, within which the response must be given on the appeals, are stipulated by Article 49 of the Constitution Act “On Elections in the Republic of Kazakhstan”. It’s important to remember that this timeframe is shortened. If under the general procedure, appeals are subjected to be addressed within 15 days, then during the election period, this timeframe is shortened to 5 days, and the appeals received five days prior to or on the day of election, are addressed immediately.

In addition to the referred legal documents, courts of the Republic of Kazakhstan are guided also by the Civil Code of 13 July 1999.

All the applicants to the CEC were notified on the results of addressing their appeals, within the timeframe stipulated by law. The citizens, who were not satisfied with the results of the addressing of their appeals, were eligible to appeal in the court.

Representatives of the Supreme Court of the Republic of Kazakhstan assert that election-related legal cases were considered in open and transparent way; no remarks were obtained regarding violations of procedural requirements by courts. As to the decisions made, according to the law, applicants were entitled to appeal them in regional courts, but only one applicant from 23 addressed cases, used this right for appeal stipulated by law. As another proof of the transparency, the blog “2011 President Elections” has been posted at the Supreme Court’s website, where all election-related court acts were posted timely and were open for public access.

  1. The CEC received 12 complaints before Election Day and did not decide on any of them in a plenary session by voting, as required by law. The manner in which complaints were decided is unclear, although it appeared they were dealt with by the CEC deputy chairperson himself, with responses signed by the CEC Secretary. The law requires that all CEC decisions be posted electronically for public access, but as complaints were not decided by the CEC as a body, the written responses were not published (Section 2, page 7).

The CEC Position. The Kazakh law does not stipulate the requirement obliging the CEC to collectively consider all the complaints filed. International documents and the law of the OSCE participating States does not impose such commitments on the election organizers. The OSCE international commitments have no such requirement either.

Within the election period, the CEC received 14 complaints in total. 8 of them required checking jointly with the law-enforcement bodies and lower-level commissions, in order to verify the facts mentioned in those complaints. In our opinion, it seems natural that a collective consideration is not required in this case.

3 complaints were filed due to wrong understanding of the election-related legislation by the applicants. In these cases, the law provisions were explained.

With regard to 2 complaints filed by the candidates M. Eleusizov and
G. Kasymov, assistance was required in running the election campaign.

In another appeal, a citizen of the Republic of Kazakhstan complained that he had no identity card and therefore could not vote. We re-addressed this appeal to the prosecutor’s office for taking relevant measures.

Also, the candidate Zh. Akhmetbekov’s headquarters complained on damage of his agitation printed materials. However, no concrete information was provided to allow checking the facts. The CEC sent reminder to all election headquarters on the necessity to observe the law requirements.

The CEC will appreciate if OSCE/ODIHR EOM gives examples of the collective decisions that could have been made on the above mentioned complaints received by the CEC.

  1. In another case, contrary to the Election Law, the Supreme Court refused to consider a complaint on the grounds that the CEC has sole prerogative to determine violations of the Election Law and de-register candidates, with no recourse to courts (Section 2, page 8).

The CEC Position. The Mission’s comments saying that contrary to the Election Law, the Supreme Court refused to consider a complaint on the grounds that the CEC has sole prerogative to determine violations of the Election Law and de-register candidates, is unjustified, as the law itself stipulates such provision, and only the CEC decision on the issue may be appealed in the Supreme Court. In addition, the plaintiff missed the 10-day timeframe stipulated by law for appealing the CEC decisions.

  1. Candidates nominated 31,916 proxies, of which 28,902 represented Mr. Nazarbayev (Section 2, page 8).

The CEC Position. According to the data provided by TECs, 31,645 (not 31,916) proxies were registered, including 28,902 – for N. Nazarbayev, 1,039 – for Zh. Akhmetbekov, 1,038 – for G. Kasymov and 666 – for M. Eleusizov.

Clause 2 of Article 31 of the Kazakhstan Election Law says “the candidates may have, at their discretion, not more than three proxies for each polling station in a relevant election district”.

Thus, taking into account that 9,725 PECs were operating throughout Kazakhstan, each candidate could have not more than 29,175 proxies. Candidate
N. Nazarbayev did not exceed the required number of proxies (he had 28,902 proxies). The law clearly regulates this issue: less than 29,175 proxies are allowed, but more than this number is not allowed.

On the other hand, the fact that the candidate N. Nazarbayev had more proxies than allowed, compared to other candidates, proves vast support of his political program. Availability of fewer or more proxies with the candidates is not considered violation of the Kazakh law. Less or more proxies mean the competitiveness of the candidates during the campaign. As we can see, the election law in this case has not been violated.

  1. International observers (from International Election Observation Mission) assessed voting positively in 91 per cent, but negatively in a considerable 9 per cent of polling stations visited, indicating systemic and serious problems. They reported a number of serious irregularities, including series of seemingly identical signatures on the voter list (219 cases) and strong indications of ballot box stuffing (28 cases). Other violations observed included ballot boxes that were not properly sealed (98 cases), group voting (128 cases), multiple voting (34 cases), and proxy voting (63 cases). In 80 polling stations visited, people who did not present any form of prescribed ID were still allowed to vote. In 73 polling stations visited, voters were turned away because their names were not on the voter list. (Section 2, page 8).

The CEC Position. The CEC has sent an official letter to the OSCE/ODIHR Mission (letter N. OSK-05/596i of 7 April 2011) with the request to provide information on the numbers of the election commissions, their location (locality, district and region) where the mentioned violations of the election law were observed. If the violations are confirmed, then the work on their corrections will become the basis for further modification of the election system of the country.

The Office of General Prosecutor of the Republic of Kazakhstan informs that “no appeals and information regarding ballot box stuffing and identical signatures on the voter lists were received by the prosecutor offices”. It is practically impossible not to notice such irregularities at polling stations, with the election commission represented by various political parties, and with observers from various political parties, opposition-mind NGOs and proxies present. In case, such irregularities took place, there would be complaints and appeals from the persons affected. However, no such complaints or appeals were filed.

We also can not accept the Mission’s statement that “In 73 polling stations visited, voters were turned away because their names were not on the voter list”. According to the Election Law, the members of the election commissions were instructed that the voter’s registration in the house-register within the given election district will be the basis for additional inclusion of this voter into the voter list, thus giving him an opportunity for voting. Probably, the people at those 73 polling stations had no house-registers, absentee voter certificates or other documents proving their right for registration. Therefore, we assume that the actions of the members of the lection commissions at those polling stations were lawful, as in this way they excluded the probability of repeated “carousel” voting by the same people.

  1. Tabulation at many DECs lacked transparency, with international observers being restricted in their observations. International observers reported 49 cases where PECs completed results protocols at the DEC premises and 29 where they corrected them without a formal DEC decision. Figures in PEC protocols did not reconcile correctly in one of five DECs observed (Section 2, page 9).

The CEC Position. The CEC has officially requested to provide concrete facts regarding polling stations, their numbers and location, and hopes to get official response.

***

The Constitutional Act “On Elections in the Republic of Kazakhstan” stipulates the requirement to support any comments or remarks with documented, reliable and examinable facts (Sub-Clause 5 of Clause 3 of Article 20). We would highly appreciate if OSCE/ODIHR EOM provides information on the TECs names, on the numbers of polling stations specifying facts of the irregularities registered.

It is preferable that those facts are registered and specified that were witnessed by the OSCE/ODIHR Mission observers.

We are grateful to OSCE/ODIHR Mission for the opinion expressed by the Mission Head during the meetings with the Chairperson and members of the Central Election Commission; for the readiness for cooperation and partnership, for the Mission’s readiness to take into account our opinion, arguments and justifications when preparing the Final Report on the findings and assessment of the early presidential elections in the Republic of Kazakhstan.

The CEC is ready to meet the experts and provide documents and materials to clarify the questions that may arise with the Mission when preparing the Final Report.

Note: The Ministry of Foreign Affairs, Ministry of Interior, Ministry of Communication and Information, General Prosecutor’s Office, Supreme Court, lower-level election commissions of the Republic of Kazakhstan rendered assistance to the Central Election Commission of the Republic of Kazakhstan in preparing these Comments.

List of Abbreviations

ANSDP – All-National Social-Democratic Party (of Kazakhstan)

CEC – Central Election Commission of the Republic of Kazakhstan

Copenhagen Document – Document of Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (OSCE) of 29 June 1990

CPK – Communist Party of Kazakhstan

CPPK – Communist People’s Party of Kazakhstan

DEC – district election commission

DPK “Adilet” — Democratic party of Kazakhstan “Adilet”

DPK “AK ZHOL” – Democratic party of Kazakhstan “AK ZHOL”

DPK “AZAT” – Democratic party of Kazakhstan “AZAT”

Election Law – Constitutional Act of the Republic of Kazakhstan of 28 September 1995 “On elections in the Republic of Kazakhstan”

EOM – Election Observation Mission

IEOM – International Election Observation Mission

KSDP “Aul” – Kazakhstan Social-Democratic Party “Aul”

OSCE – Organization for Security and Cooperation in Europe

OSCE/ODIHR – Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe

PDP “Nur Otan” – People’s Democratic Party “Nur Otan”

PEC – precinct election commission

REC – regional, cities of Astana and Almaty territorial election commissions

RK – Republic of Kazakhstan

TEC – territorial election commission

Central Election Commission

Republic of Kazakhstan

15 April 2011