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payments from local budgets supporting the appointed counsels’ activities.
In our view the most optimal solution is to reduce the number of potential consumers of legal aid, as stated
above. Methods for expanding the network of services have been also mentioned.
In addition to that, this problem could be tackled from the inside by developing a mechanism where each
person can receive the funds to pay attorneys’ fees, as we cannot mechanically cut the number of people
eligible for legal aid – this would be a violation of their rights. Therefore we propose introducing a legal
insurance system in the state allowing each individual who makes insurance contributions to hire a lawyer
upon the occurrence of an insured event, i.e. wherever the need for criminal defense arises, and pay for legal
services according to the official average rates applicable in the state out of the legal insurance funds. These
mechanisms exist in the global practice of law, empowering the people to receive high quality service if an
insured event occurs. A similar system is in place for car owners to insure against a car accident. Naturally, if the
legal insurance system is adopted it will be necessary to develop and clarify all legal aspects of the insurance
facility as well as the practical model of its operation.
3. Unfortunately at the moment it is quite difficult to develop realistic evaluation criteria on the
eligibility for free legal aid according to property status. However, in an effort to improve the
legal and tax culture among the public, the state can envisage such criteria for the future and
elaborate an optimal selection mechanism to establish a person’s property settings in a quick and
non-bureaucratic way, as happens in developed countries.
Many countries, where the various aspects of free legal aid were originally regulated by unrelated provisions
of and the codes of civil and criminal procedure, laws on administrative procedures, on legal community or
on the budget, etc., now have adopted uniform legislation governing the provision of such assistance from a
single viewpoint.
A relationship between the payment for legal aid and the property status of the accused should be introduced.
We have already addressed this issue in our concept, stating that the unpreparedness for this process is
accounted for by low legal and tax culture among the population. However, in the future, the adoption of a
single legislative act, combining the above documents will help reduce the number of people applying for free
legal aid, which, in its turn, will increase the individual pay rate to the categories remaining in the mentioned
legal segment.
4. In the current context the program budgets include neither public awareness costs nor the
administrative costs of bar associations, pertaining to the legal services administration, collection
and storage of reports, etc. In addition to that, pursuant to the Law of the Republic of Kazakhstan
On Legal Practice, the legal practice is not considered to be a business activity, as its main purpose
is the protection of the rights of people and citizens. The new model that we propose envisages
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some external funding of the information activities, that may help the public realize the defense
attorney’s role and raise public awareness of their rights in the event that they become involved
in a criminal case as the accused, a defendant, or a suspect.
This scheme needs to be complemented with information component providing for dissemination of the data
on the legal aid system and its features within the frameworks of legal education. It might not be as hard as
it seems and the first step could be to provide each person on trial with a pamphlet, a booklet, or a brochure
outlining the defendants’ basic rights and the possibilities of obtaining legal aid, particularly free legal aid.
5. As a scheme for the public financing of appointed counsels, we propose a fixed rate for
participation in each case rather than an hourly payment depending on the number of hours spent
by a lawyer on this or that law suit. However, these costs should not be over- or underestimated,
but correspond to the average amount of funds for conducting one case. Let us make it clear
that all cases cannot be treated identically as some are resolved during one hearing while the
others may last for months and even years. It is therefore necessary to develop a pay scale taking
into consideration the case complexity, topic, number of participants, location of the crime, and
many other factors. When developing this important tool one should rely upon the average “cost”
of a lawyer for a case. The calculations derived from the statistics processed by our creative
team during the survey reveal that the average payment for one case in Kazakhstan and in North
Kazakhstan Oblast amount to 4,197 tenge and 3,339 tenge, respectively. Naturally, these figures
reflect the state of affairs in 2007, while today their values should be 20-30% higher.
The pay scale should be developed by the joint efforts of the lawyers and the government representatives
responsible for the estimation of the sums and payment for appointed counsel, both at a regional and national
level.
The assigned counsel should be remunerated for participation in the case in accordance with the established
rates. When taking on the work, the lawyer already knows the amount of payment and is therefore interested
in settling a case as soon as possible. Thus, the lawyers’ remuneration system is simplified.
The scheme of attracting a lawyer will look as follows. The appointment procedure remains the same, with the
counsel being appointed by the body conducting the criminal process – either by the investigator, or a lawyer.
To be eligible for compensation for the work on a particular case, the lawyer should submit an application
to the bar association with his or her assessment of the case complexity. The bar association evaluates
each application by weighing the merits of the case. As a result of this process and considering the lawyer’s
grading of the case, the association shall decide on the rate to be applied. If the application is granted, the
lawyer will receive a certificate permitting him or her to conduct the case, and indicating the rate as well as
the fixed amount payable to the lawyer. This system of lawyers’ certification exists in many countries. At the
heart of this system is the certificate which grants the lawyer a right to process the case and be remunerated
with a given sum as a payment for handling this particular legal action.
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