FREE LEGAL AID IN KAZAKHSTAN
234
Thus, all the international statutes listed above concur in that they guarantee, first, the right to competent
legal aid and, second, the right to subsidized legal aid for certain groups of persons (1) or when the interests
of justice so require (2).
The first group of guarantees includes the following:
•
equal access to legal aid, which excludes inequality and discrimination in the access to competent
legal assistance, including subsidized legal aid;
•
the right to a fair and effective consideration of the applications for free legal aid, including subsidized
legal aid;
•
the right to legal aid not only in criminal cases, but also in civil and administrative cases; and
•
the right to choose legal assistance (except when this right is restricted in regard to subsidized legal
aid).
The second group of guarantees of subsidized legal aid includes the following:
•
right to subsidized legal aid for not only persons charged with a criminal offence or victims of crime
if they do not have sufficient means to pay for legal assistance, but also for vulnerable groups and
certain other groups of persons;
•
provision of information about the right to legal aid;
•
financial, organizational, and resource support for the programs of subsidized legal aid; and
•
its quality and effectiveness.
The financial, organizational, and resource support for the programs of subsidized legal aid, which is the most
important and fundamental guarantee of the aid, means the following.
The state should not only guarantee the provision of competent legal aid, but create the conditions for it to be
effective. Principle 2 of the Basic Principles on the Role of Lawyers sets forth that “governments shall ensure
that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided
for all persons within their territory and subject to their jurisdiction.”
Many documents recommend that the states launch legal aid programs that would guarantee the free choice
of lawyer. Recommendation # R (93) 1 On Effective Access to the Law and to Justice for the Very Poor urges
states to “facilitate effective access to the courts for the very poor, especially by the following means: […]
recognizing the right to be assisted by an appropriate counsel, as far as possible of one’s choice.” However, the
right to choose legal assistance may be restricted when subsidized legal aid is provided. Resolution (78) 8 On
Legal Aid and Advice sets forth that “the assisted person should, so far as is practical, be free to choose the
qualified person he wishes to assist him.”
Chapter IV
235
The European Council of Human Rights has reiterated this fact in its judgments and noted that “[…] the
right to choose one’s own counsel cannot be considered to be absolute. It is necessarily subject to certain
limitations where free legal aid is concerned. When appointing defense counsel the national courts must
certainly have regard to the defendant’s wishes. However, they can override those wishes when there are
relevant and sufficient grounds for holding that this is necessary in the interests of justice.”
72
Therefore, international statutes promote the following principles of the provision of competent legal aid,
including subsidized legal aid:
•
equal access to legal aid;
•
a person’s right to be informed about the possibility of receiving competent legal aid, including
subsidized legal aid;
•
the right to choose a legal counsel and limitations on this right where subsidized legal aid is concerned;
•
the right to appoint a defense counsel (when a person does not have a defense counsel under an
agreement) in any case where the interests of justice so require;
•
the right to free legal aid by the appointed defense counsel if a person does not have sufficient means
to pay for it;
•
groups of persons eligible for subsidized legal aid;
•
requirements for the quality of subsidized legal aid;
•
procedure for the access to subsidized legal aid;
•
duties of the state related to the organization of the system of subsidized legal aid, its sufficient
financing, and the provision of other resources;
•
obligatory qualification, competency and experience of appointed counsels;
•
the bars’ obligation to assist the programs for legal advice to the public about the rights of nationals
and to take part in the provision of subsidized legal aid; and
•
quality control of the legal aid provided, and some other principles.
2. The Basic Models of the System of Subsidized Legal Aid in Foreign Countries
Foreign analysts note that originally free legal aid was considered solely as a means of ensuring equality of
citizens before the courts. Legal aid was only provided in court proceedings, with the involvement of lawyers
and counsels. The authorities that were considering a case played a key role in determining who could be
72
See, for example, Vozhigov v. Russia (# 5953/02, April 26, 2007); Croissant v. Gemany (# 13611/88, September 25, 1992).
FREE LEGAL AID IN KAZAKHSTAN
236
provided with a free lawyer and had wide discretion to decide whether a participant in the process needed
free legal services. All too often the provision of free legal aid was considered not a duty of the state, but a
professional duty of the legal community, and as a result there was no compensation for services provided to
the poor.
73
As the idea of access to justice evolved and the state’s active role in ensuring it has been recognized, the
approach to free legal aid changed. It has been acknowledged that the legal community’s resources were
insufficient to satisfy the demand for free services. Therefore, states began to accept obligations to finance
and organize free legal aid programs. Because of this approach, legal services were considered a form of
social benefits and the expansion of legal aid programs resulted in the emergence of new approaches to the
provision of free legal services. In particular, to provide legal aid to those who needed it state legal offices
(national defense counsel bureaus, etc.) were set up alongside, or sometimes instead of, the involvement
of lawyers. The administration of legal aid programs has been transferred from the courts to specialized
agencies.
74
Later, the legal aid programs included out-of-court consultations and wider programs for raising
legal awareness among the public
75
.
To ensure equal access to competent legal aid, many states undertake to pay for the aid or reduce the rates for
it and set up special systems of subsidized legal aid, which include special administration authorities that are
closely connected with the government but that are officially independent.
76
A system of free legal aid is being used by Austria, Australia, Albania, Belgium, the U.K., Holland, Germany,
Denmark, Israel, Canada, Portugal, Northern Ireland, the U.S., Finland, France, Sweden, South Africa, all member
states of the EU, and many other countries.
The
U.S. was one of the first countries to reform the system of legal aid. The scheme financed by the
Government was set up in 1957. In the mid-1960s, new agencies and legal aid programs for the poor financed
by the federal budget were established within the Government’s anti-poverty efforts. The U.S. has various
forms of free legal aid to indigent and low-income persons both on a federal level and in different States,
which include the following:
1. In 1974, Congress created the Legal Services Corporation (LSC), whose main objective was to finance
programs and agencies providing legal aid to indigent and low-income persons in civil and other
non-criminal cases;
2. In certain States, the main form of legal aid is the State-funded offices of public defenders, which
provide free services to indigent and low-income clients charged with criminal offences;
3. In certain locations, legal aid agencies with the status of private non-profit corporations work under
contracts with the municipal authorities;
4. A widespread form of legal aid is the “listed lawyers.” These include lawyers who wish to provide legal
assistance to indigent persons in addition to their main practice. Their details are included in the
73
International Experience in Providing Free Legal Aid. Moscow: Public Interest Law Institute (PILI), 2008, pp. 2-4.
74
Ibid.
75
Ibid, p. 4.
76
European Forum on Access to Justice. Part Five, Budapest, 2002, p. 458.
Достарыңызбен бөлісу: |