FREE
LEGAL AID IN KAZAKHSTAN
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and envisage an earlier involvement of a lawyer into the process than at the beginning of a trial. Duty
counsels can deal with relatively simple cases.
Analysis of the Existing Mechanism for Providing Assistance to Appointed Counsels and
Funding their Activities from the State Budget
In Kazakhstan, the right to free legal assistance is declared by Article 13.3 of the Constitution, which states
that «everyone has the right to competent legal assistance. In the cases provided for by law, legal assistance
is provided free of charge.» Further, Article 14 of the Constitution declares universal equality before the law
and the courts:
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“1. All are equal before the law and the courts.
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2. # one shall be subjected to any discrimination on grounds of origin, social, occupational, or property
status, sex, race, nationality, language, attitude to religion, creed, place of residence, or any other
circumstances.”
Exploring the issue of defense further reveals that a counsel’s involvement in criminal cases is regulated by
Article 71 of the Code of Criminal Procedure, which specifies the cases where the presence of a lawyer is
mandatory. The payment procedures are governed by Article 72, viz.:
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“5. Remuneration of a counsel’s work is made in accordance with the applicable law. The body in
charge of the criminal process, where justified, has the right to exempt, fully or partially, the suspect,
accused, or the defendant from paying for legal aid. In
this case, remuneration is paid by the state.
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6. The labor remuneration costs can be put on the expense account of the state also in the case
provided for in the third part of Article 71 of this Code, when a counsel has been involved in the
inquest, preliminary investigation, or the trial, having being appointed rather than being under a
contract with the client.”
The labor remuneration costs can be put on the expense account of the state also in administrative affairs in
accordance with Article 590 of the Code on Administrative Offences:
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“5. Remuneration of a counsel’s work is made in accordance with the applicable law. The judge, the
body (the official) authorized to deal with the cases of administrative offenses, where justified, has the
right to exempt, fully or partially, the person in respect of whom the lawsuit is initiated, from paying
for legal aid. In this case, remuneration is paid by the state.
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6. The labor remuneration costs can be put on the expense account of the state also in the case
provided for in the third part of Article 589 of this Code, when a counsel has been involved in the
inquest, preliminary investigation, or the trial, having being appointed rather than being under a
contract with the client.»
In civil cases, the payment for counsel services is regulated by Article 114 of the Code of Civil Procedure,
namely:
Chapter II
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“1. The judge, when preparing the case for trial, or the court, when hearing a case for the first time,
depending on the citizen’s property status, can release, fully or partially, the citizen of payment for
legal aid, and include the costs for counsel labor at public expense.
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2. The amounts payable to a legal consultancy, law firm, or a contractually employed counsel is
determined in accordance with the rules regulating the payment of legal aid provided by counsels.
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3. The ruling of the court or the judge about the full or partial exemption of a citizen from payment for
civil legal aid is to be sent to the legal consultancy, law firm, or the contractually employed counsel,
for
information, as well as to the financial authorities at the location of the court, for enforcement.”
Building on the theoretical part of our work, it should be stipulated that the
constitutional provision of free
counsel aid unambiguously applies only to criminal proceedings, and only to the persons subject to criminal
prosecution. While in criminal cases the work of an appointed counsel is paid from budgetary funds, it must be
duly “justified” for the administrative cases, and will be provided “depending on the citizen’s property status”
in case of civil proceedings. The final decision remains with “the judge, the body (the official), authorized to
deal with the cases.”
Thus, one must rely on the judge’s decision in this situation, as in civil and administrative cases the payment
issue depends entirely on the judge. But as a representative of the state’s in-house interests, the judge is not
interested in providing payment, as public funding for this purpose is very limited. It would be prudent in
dealing with private matters of payment to rely on Article 6 of the Law of the Republic of Kazakhstan
On Legal
Practice, which regulates the cases and categories of recipients of legal aid:
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“1. The counsels provide legal assistance free of charge to the following clients, at the request of the
latter:
1) plaintiffs in the courts of first instance in the management of cases of alimony, compensation for
damage caused by the death of breadwinner, injury or other impairment of health connected with
work;
2) participants in the Great Patriotic War and persons equated with them, army conscripts, disabled
of
group I and II, retired on age when providing consultations not related to matters of business;
3) citizens drafting applications for pensions and allowances;
4) citizens seeking consultations on rehabilitation issues.
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2. The procedure for providing free legal aid is determined by the charter of the bar.
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3. The citizens, depending on their financial capacity, may be exempt from payment for legal aid by
the management of the board of counsels, by the head of legal consultancy, owner (owners) of a law
firm or a lawyer practicing individually without registering an entity. Payment for legal aid provided by
counsels in the cases provided for in this article shall be effected by means of, respectively, the board
of counsels, or the law firm.”
