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primary legal aid and competent legal assistance. The system of state-guaranteed legal aid is administered
by the Ministry of Justice, the bars, and the National Council for State-Guaranteed Legal Aid and its territorial
offices, which employ up to 20 public lawyers on average. In accordance with Resolution #15, dated July 30,
2008, which governs the operation of territorial offices of the National Council for State-Guaranteed Legal
Aid, each territorial office provides the following types of state-guaranteed legal aid: competent, emergency,
and primary.
Lawyers are admitted to the territorial offices following a competition organized by the National Council.
Quality and emergency legal aid is provided by the lawyers who are on the list of public lawyers or those
providing legal aid on request. Primary legal aid can also be provided by paralegals and public associations
included in the relevant list. Territorial offices establish contracts with public lawyers, lawyers providing legal
aid on request, and public associations entitled to provide competent legal aid. Territorial offices pay for the
legal aid provided by these lawyers or associations after they have received and checked their reports, at the
rates set by the National Council, based on the forms, quantity and quality of the provided state-guaranteed
legal aid.
Lawyers who are employed by territorial offices on a contractual basis receive fixed salaries.
In
Ukraine, the discussion on the state (and municipal) lawyers’ services began in 1999. The lawyer community
considered this discussion as an invasion of their independence
95
. However, in 2006, the President of the
country approved the Blueprint for the Development of the Legal Aid System in Ukraine, which provides for
the establishment of systems of primary and secondary legal aid. This system is administered by a special
management body which is accountable to the Ministry of Justice and the Cabinet of Ministers
96
. Currently,
Ukraine has three experimental offices for free legal aid in criminal cases
97
.
In
Russia, the testing of a model for the provision of subsidized aid through state legal bureaus began in
2005
98
. This model envisaged the provision of legal aid to clients by employees of the bureaus and by lawyers
involved by the bureaus on a contractual basis
99
. The bureaus were established in ten regions of the country
in the form of state institutions. They provided free legal aid to indigent persons and certain other groups of
the population. After four years passed, the decision was made to continue with the bureaus
100
. Currently, the
Russian government is discussing a draft law for the state system of free legal aid to low-income persons.
However, the legislators and the legal community have different views on how the law should be formulated
101
.
Those who oppose the establishment of state bureaus (these are primarily lawyers) believe that the lawyers
who will work for them as public officers will not be independent and the whole idea will turn into bureaucratic
red tape, with useless large expenditure. Lawyers believe that a public officer will never protect a person who
95
Aleksandrova, I. Ukraine: Debate over State Lawyers’ Services // Advokat, 1999, #6, pp. 90–92.
96
Decree of the President of Ukraine #509/2006 dated June 9, 2006.
97
Vagina, N. Ukraine: A Report on the Right to Legal Aid at a Police Station: Law, Practice, Tasks, and Solutions // Materials of the Meeting on Early Access
to Lawyers within the Framework of the Legal Assistance – Combining Efforts Project. Sofia, October, 2009.
98
Resolution of the Government of the Russian Federation #534 dated August 22, 2005, On the Experiment in Establishing a State System for the
Provision of Free Legal Aid to Low-Income Nationals.
99
Competent Legal Aid: Assessment and Control Methodology. Moscow, 2008, pp. 152–153.
100 Resolution of the Government of the Russian Federation # 1029 dated December 25, 2008, On State Legal Bureaus // Rossiyskaya Gazeta, January
15, 2009.
101 Yamshanov, B. Lawyers Making Their Suggestions to the Draft Law on Free Legal Aid to the Poor // Rossiyskaya Gazeta, February 2, 2010.
FREE LEGAL AID IN KAZAKHSTAN
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has been offended by another public officer. For this reason they insist that it would be more reasonable to
transfer the money allocated for this purpose to the legal community so that the defense counsels could duly
provide expert legal assistance to those who need it. Their suggestion is to set up a system of free legal aid
not in the form of a separate state structure, but in the form of sections or offices at local departments of
justice. The lawyers’ arguments are that this scheme will not involve new expenses for the premises, transport,
and other organizational and business needs. In their opinion, these structures should not particularly large;
they should select candidates for the provision of free aid and then make contracts with the bar, law firms, or
private practitioners
102
.
In
Kyrgyzstan, the Law on State-Guaranteed Legal Aid took effect on January 1, 2010. The objective of this
law is to ensure the provision and accessibility of free legal assistance through the creation of a special body
to administer the system of state-guaranteed legal aid (the National Council for State-Guaranteed Legal Aid
at the President of the Kyrgyz Republic), and the system for encouraging the legal community to take part in
these processes.
Similar changes took place in
Bulgaria, Latvia, Poland, Slovakia, the Czech Republic, Estonia
103
, and some
other countries.
The laws on, and systems of, subsidized legal aid in the above countries have the following common features:
•
The system of free legal aid is administered by budget-funded authorities that are set up, as a rule,
within the Ministry of Justice. However, other models are also used (in Slovenia, for example, the
professional office for free legal aid is a part of the court system and the Ministry of Justice regulates
the activities of the courts in this area);
•
The criteria for the provision of free legal aid have been determined as: (1) the interests of justice; (2)
financial capacity (the level of income and/or property); and certain other factors;
•
A person requesting free legal aid is subject to a financial capacity test, i.e. his or her property ceiling
and needs ceiling are determined;
•
The scope of legal aid
104
depends on the amount of budget funds provided by the state;
•
Quality control of legal aid is performed not only by the competent body, but also by professional
lawyers’ associations;
•
In all countries, the Ministry of Justice plays a key role in administering the system of free legal aid and
in developing the respective policy. The bars also play an important part. They either provide this aid,
or combine the provision of free assistance, its administration and quality control
105
;
102 Ibid.
103 New Legislative Provisions and Initiatives in the Area of Free Legal Aid in Central and Eastern Europe after the First European Forum on Access to
Justice Held in December, 2002 // www.pili.org..
104 Legal aid is not provided absolutely free in all cases. In some countries (Hungary, Lithuania, and Slovenia, among others), if a person is found guilty
by court, he or she may be obliged to reimburse the state for legal costs, including the appointed counsel’s fee.
105 European Forum on Access to Justice. Part One, Budapest, 2002, p. 7.
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•
In the majority of countries, only individuals have the right to subsidized legal aid. However, some
countries provide this right to certain legal entities (in Estonia, for example, free legal aid may be
provided to legal entities and non-governmental organizations; in France and Italy, this right is
provided to non-profit organizations
106
);
•
Since the provided legal aid needs to be of a high quality, a lot of financing is required
107;
•
The types of legal aid provided include secondary and primary assistance.
An analysis of the previously mentioned countries’ experience in providing subsidized legal aid suggests that
it only can be efficient when its organization, control and coordination are the task of a single body, which
is legally independent. Widespread mechanisms to administer legal aid abroad are commissions, bureaus
and centers vested with administrative/management functions. Usually, these structures are state-owned and
accountable to the Ministry of Justice.
However, despite the wide diversity of the providers of subsidized legal aid in various countries, they are
usually limited to the following models:
1.
Contracted services/judicare model: a system where a special state authority enters into a contract/
agreement with a lawyer or a law firm to provide legal assistance in a certain number of cases or for a
certain group of cases. Their services are paid from the national budget. This model is used in Austria,
England and Wales, Australia, Norway, the Netherlands, Scotland, Sweden, Canada, and some States of
the U.S.108 The model has two sub-types:
a. Pure judicare model where lawyers are paid for the legal services they provide by the state through
local administration bodies, bars, or another organization. In some instances, courts refer the persons
eligible for free legal aid to the lawyers who take part in the program for state-funded legal aid. Then,
lawyers submit invoices to the court for checking and payment. Payments from the budget are made
per service (e.g., a fixed fee for uncontested divorce), per hour, or based on the maximum payment for
a service irrespective of its duration
109
. The experience of foreign contracts suggests that this model
is significantly more expensive than the fixed salary model
110
;
b. Duty counsel model where lawyers are employed part-time and receive payment for each day worked
as a defense counsel or a representative when free legal aid needs to be provided.
The judicare model can be enhanced by legal clinics where students and graduates of universities
provide legal assistance free of charge under the supervision of professional lawyers. In addition,
some countries have an insurance scheme. The insured receives free legal aid in the event of an
insured occurrence or, in other words, when circumstances arise, in which he or she is entitled to legal
assistance by law. A lawyer in this event is paid by the legal insurance fund, at an agreed average rate.
106 International Experience in Providing Free Legal Aid. Moscow: Public Interest Law Institute, p. 13
107
European Forum on Access to Justice. Part Five, Budapest, 2002, p. 455.
108 Competent Legal Aid: A. Methodology of Assessment and Control. Moscow, Public Interest Law Institute (PILI), 2008, p. 7.
109 Ibid.
110 European Forum on Access to Justice. Part Five, Budapest, 2002, p. 526.
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2.
Public defender model is a scheme where the state or an authority governing the legal aid system
establishes a legal aid provider, which is a network of territorial offices (bureaus, councils, centers,
commissions, etc.) guaranteeing access to legal assistance for indigent persons. As a rule, these offices
use the following scheme. A duty counsel has a preliminary meeting with a client who has applied for
legal assistance to discuss the submitted legal issue. If the issue is not complicated, legal assistance
can be provided immediately in the form of information or advice or by referring the applicant to
an authority or organization where his or her issue can be resolved without the involvement of the
office’s lawyers. However, if the issue requires more time, the client is referred to another lawyer in
the office, who specializes in the relevant area of law
111
. This model is used by England and Wales, the
U.S., Israel, Scotland, Lithuania, Russia, and Ukraine, and some others).
3.
Ex officio model is a scheme where the state, which is represented by criminal authorities (a prosecutor,
investigator, police, or court) appoints a defense counsel through professional lawyers’ organizations
to provide legal aid to the person concerned. The counsel’s services are paid from the national budget.
For some lawyers who do not have a wide client-base or who have just entered the legal community
or work in a region where the number of lawyers exceeds the demand for legal assistance, legal aid
cases are the main source of income. As for highly experienced lawyers who usually have many clients
and are, consequently, always busy, the overwhelming majority of them do not handle these cases.
This model is typical of the majority of post-Soviet states (including Kazakhstan) and former socialist
countries of Central and Eastern Europe.
4.
Mixed model is a system which combines the elements of the first two schemes mentioned above
and other models. Free legal aid is provided by an independent state organization (bureaus, councils,
offices, centers, etc.; i.e. the public defender model), with the involvement of private practitioners
based on contracts for separate cases (i.e. the judicare model). Other schemes are also used (legal
clinics, pro bono models, and paralegals, among others).
Many countries use the mixed model. Experts explain that, “choosing a model without using the advantages
of another scheme results in that the legal aid system faces many problems it could have avoided. If limited
to solely the judicare model or the staff lawyers model, the authority administering the legal aid system will
face all the drawbacks, without paying due attention to the advantages and compensatory opportunities of
another model. […] A combination of models is the best choice to provide legal services to indigent persons.”
112
111 Ibid, p. 9
112 Competent Legal Aid: A. Methodology of Assessment and Control. Moscow, Public Interest Law Institute (PILI), 2008, p. 11.
245
Conclusion
This publication points out the necessity of improving the system of free legal aid provision. Not all citizens
have the real opportunity to go to court and take legal action. Analyzing existing problems it should be said
not only about efforts made by experts’ society and NGO sector but also about government initiatives aimed
at changing the situation in this area. In particular, Concept on Legal Policy of Kazakhstan for the period from
2010 till 2020 underpins the changes in the remuneration system of lawyers, who provide free legal aid. As
the publication shows such system should be consolidated and transparent.
The right to competent legal aid secures fundamental foundations of democratic society. The welfare and
safety of each citizen ultimately depends on how efficiently and reasonably the provision of this assistance
is organized. Thus, ensuring the right to competent legal aid provided by article 13 of the Constitution of
Kazakhstan can be achieved through joint efforts of the government, researchers and civil society.
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