Chapter IV
239
In England and Wales the first legal aid service for the poor was established in 1945 and the legal aid system
was launched in 1950. Before that time, free legal aid was provided by private duty counsels (solicitors). They
were paid from
a special government fund
83
.
Until 1987, the system of free legal aid was administered by the Law Society, a professional lawyers’
association, which was later replaced by the Legal Aid Board. In 2000, the Legal Services Commission (LSC), a
non-departmental public body, was set up to administer the scheme.
The LCS is based on a franchising or contractual system. It manages the provision of public legal aid, which is
provided mainly by private practitioners (Community Legal Service and Criminal Defense Services). A peculiarity
of the English system is the domination of private practitioners (while in the U.S., for example, salaried lawyers
of legal aid services and public defenders are more widely involved)
84
.
By 1972, England had three forms of legal aid, which still exist today: (1) free advice and assistance; (2)
representation in civil cases; and (3) criminal defense
85
.
In the 1970s, similar systems of subsidized legal aid were introduced in a number of Western countries (for
example,
Australia, Canada
86
, France
87
, Federal Republic of Germany
88
, Finland
89
, and
Sweden
90
, among
others).
In the mid-1950s many of the former socialist states of Central and Eastern Europe (Bulgaria, Hungary,
Poland, Romania, Slovakia, and the Czech Republic, among others) and in early 2000s former Soviet republics
(Lithuania, Latvia, Estonia, Georgia, Moldova, Ukraine, Russia, and Kyrgyzstan, among others) launched legal
and institutional reforms, the main objective of which was to provide competent legal aid, including free
assistance. However, analysts note that in almost all countries of Central and Eastern Europe and former Soviet
Union the legal aid systems had remained unchanged from the Soviet times
91
. Therefore, the main reasons for
the creation of the systems of subsidized legal aid, in addition to the intention of many of these countries to
join the EU, were as follows:
83
Apparova, T.V. Op. cit, pp. 56–58.
84
European Forum on Access to Justice. Part Five, Budapest, 2002, p. 455.
85
Apparova, T.V. Op. cit, p. 56.
86
In these countries, legal aid provided to indigent persons is funded by the state (Access to Justice. The Issues of Free Legal Aid in Central and Eastern
Europe: A Collection of Materials and Documents. Edited by L. Reznichenko. Budapest, 2004; pp. 3–4, 525, 692-669).
87
In France, Legal Aid Offices work nationwide to provide legal information and advice, as well as representation and defense if requested (full or
partial legal aid is provided in the latter case depending on the applicant’s income). The provision of free legal aid depends on the client’s means,
which is why legal aid can be provided to persons who are not too poor to claim free aid yet not wealthy enough to pay all the legal costs themselves
(Smolensky, M. B. Advocates’ Activities and Services in the Russian Federation. Rostov-na-Donu, Feniks, 2004, pp. 218–219). A peculiarity of the
French system is that the state insures the expenditure associated with the provision of legal aid to indigent persons and the lawyer’s fee is covered
by the insurance. (Access to Justice. The Issues of Free Legal Aid in Central and Eastern Europe: A Collection of Materials and Documents. Edited by L.
Reznichenko. Budapest, 2004; pp. 3–4, 692-693).
88
In Germany, the legal aid system is administered by the Laender. Legal aid is provided in all types of civil cases. However, persons charged with
criminal offences and insolvent debtors do not have right to legal aid. In Bremen and Hamburg, legal advice is provided by state-funded legal aid
offices. By 2000, Germany has become the largest market in the insurance of legal aid expenditure compared to other EU members. (Access to Justice.
The Issues of Free Legal Aid in Central and Eastern Europe: A Collection of Materials and Documents. Edited by L. Reznichenko. Budapest, 2004; pp.
69–6954, 701).
89
Finland has advice centers at public legal aid offices, the employees of which (state legal assistants) are public officers (Ibid, pp. 680-681).
90
Sweden has public legal bureaus, which work in accordance with the Legal Aid Act and include public advisors and private practitioners. The system
has five forms of legal aid: (1) legal advice on any legal issues; (2) legal aid in civil cases; (3) services of a public defense counsel; (4) representation
of a victim of a crime; and (5) public counsel (Ibid, pp. 685, 687).
91
Legal Initiatives, February, 2004, p. 6.
FREE
LEGAL AID IN KAZAKHSTAN
240
•
to establish clear financial and material criteria for the provision of subsidized legal aid where a
person does not have sufficient means to pay for it;
•
to ensure the accessibility of legal aid in criminal cases which would guarantee the right to defense in
any cases where imprisonment is possible;
•
to ensure that legal aid is duly provided in civil cases
92
; and
•
other reasons particularly relevant to each of the countries.
The reforms implemented by these countries have significantly expanded the application of the right to
free legal aid not only in criminal cases, but also in civil and administrative processes, and not just during
proceedings, but also out of court.
Lithuania was the first country, not only among former Soviet republics, but also among other socialist
countries in Central and Eastern Europe, to adopt in 2000 a legal framework for this: the Law on State-
Guaranteed Legal Aid. This law established the system of state funding for the national network of public
lawyer offices. In addition to that, the law determined the group of persons who have an unconditional right
to free legal aid (vulnerable groups and the disabled) and set forth the provisions governing primary and
secondary legal aid and legal aid by public institutions.
Primary legal aid in Lithuania is provided to all applicants irrespective of their financial capacity. The provision
of secondary legal aid depends on the applicant’s income and property
93
. Public lawyer offices are the
backbone of the national system of subsidized legal aid. Lithuania has a mixed model for the provision of
legal aid, which includes public lawyers,
ex-officio private practitioners, primary legal aid sections at local
governments (these sections are accountable to both the Department of Justice and the administrator of the
local government), and legal clinics at universities. Vilnius, for example, has five public lawyer offices, 14
primary legal aid sections, and a legal clinic at the Vilnius University.
In
Hungary, the Government approved a program for the provision of competent legal advice to low-income
persons and for legal representation of their interests in 2000. In 2003 the Legal Aid Act was adopted, and
starting in 2004 the Model Program for Free Legal Aid was implemented. This program intends to develop a
model for legal defense to be provided by appointed public lawyers. The quality control of the free legal aid
system and the responsibility for its support are vested with the Model
Council for Free Legal Aid
94
.
Lawyers, law firms, non-governmental organizations, local governments, and legal clinics at universities may
provide free legal aid if they are registered in accordance with the law. NGOs and legal clinics at universities
are entitled to state funding to be able to provide free legal aid.
In
Moldova, the work to reform the subsidized legal aid scheme began in 2003. As a result of these efforts,
a pilot Public Defender Bureau was set up in Chisinau in 2006, with the assistance of Soros Foundation-
Moldova. In 2008, the Law on State-Guaranteed Legal Aid was adopted, which governs the provision of
92
European Forum on Access to Justice. Part One, Budapest, December 5-7, 2002. Forum Materials, Budapest, 2003, p. 4.
93
The Issues of Free Legal Aid in Central and Eastern Europe: A Collection of Materials and Documents. Edited by L. Reznichenko. Budapest, 2004; pp.
17, 67-69, 133, 709–721.
94
Balázc Tóth. Model Program for Free Legal Aid in Hungary // Materials of the Second European Forum on Access to Justice. Budapest, 2005 (February
24-25).