Chapter II
209
lawyers. And this will be possible only if their activities intersect. Therefore, we propose extending the right
for provision of certified services to the representatives of legal clinics. Romania, for example, has set some
precedents for the provision of public funding for the legal services rendered by human rights NGOs.
9. Finally, let us dwell on the coordinating body. This body will be charged not only with the
determination of the amount payable for each specific case and the amount of contingent
fee depending on the outcome, but will also control the quality of services provided by the
appointed counsel. The issues to be considered will include the state budget funding as well as
defining the case complexity in accordance with one of the pay scale indicators. Currently, “the
lawyer’s application serves as the grounds for passing the ruling or decision on payment for the
legal aid provided by a lawyer, and reimbursement of the expenses related to the protection
and representation,” as is stated in the provisions regulating the payment for legal aid and
reimbursement of the protection and representation costs from the state budget.
The same document also stipulates the payment deadlines: «The decision of the inquiry body or the
investigator on the payment for legal aid provided by counsel and the compensation of costs associated with
legal protection from the state budget shall be made after the counsel has fulfilled the assignment; for the
cases where an assignment lasts for more than one month, the compensation shall be made on a monthly
basis.» These rules can be followed, although the payments to lawyers will need to be made in advance as the
amounts will be known beforehand; alternatively, they can be split into several tranches.
With a view to managing and ensuring the quality of services provided by an appointed counsel it is proposed
that a coordinating body is formed to address the following issues:
•
assessment of the quality of the services provided by lawyers;
•
monitoring the compliance of the amount of fees requested by lawyers for conducing the case, with
the pay scale rates;
•
overcoming any conflicts between appointed counsels and public bodies; and
•
guidance to the agencies providing legal services.
It is assumed that the coordinating body will operate at a regional level and consist of the following
representatives:
•
the bar association (panel representatives);
•
a representative of the justice department; and
•
a representative of human rights NGOs.
FREE LEGAL AID IN KAZAKHSTAN
210
In countries where free legal aid is properly ensured, these bodies bear different names. «For example, in the
Netherlands this body is called the Legal Aid Council, in South Africa the Legal Aid Board, in England Legal
Services Commission, and in Israel the Public Defender Bureau. Obviously, the organizational arrangement,
competence, and composition of the structures are specific to each country; however, common feature of these
units is their independence in terms of ensuring legal aid.»
22
The Fixed Payment Model
The debates on reforming the Kazakh model are ongoing at the moment. The currently suggested option is to
pay lawyers a fixed salary, at least equal to that of public prosecutors. The main disadvantage of this model, in
our opinion, is that the lawyers will be gradually merging with, and integrating into the public structures. More
specifically, working in a public office and receiving a steady salary from the state, the lawyer will turn into
an ordinary civil servant. The fixed salary, equivalent to the wages of other public servants, coupled with the
single bureaucratic system – all this, ultimately, may lead to the common diseases of the public service, among
which are the deadliest sins of corruption and neglect of official duties. Can the lawyer effectively counteract
the prosecutors and investigators in the course of investigation and trial proceedings? Indeed, Part 6 of Article
15 of the Law of the Republic of Kazakhstan
On Legal Practice reads as follows: “A lawyer is prohibited from
holding civil service post, engaging in entrepreneurial activities, or holding any other paid positions except
for teaching, research, or creative activities.” In practice the proposed model comes into conflict with this
document.
The Rate-Based Payment Model
When developing our model, we tried to take Kazakhstan’s realities in terms of provision and financing
appointed counsel’s aid into account. As with any reform, our team is primarily aiming at optimizing the free
legal aid model. While doing so we have resorted to various models applied in many countries around the
world, trying to make a mix of them that will best suit our situation. It is assumed that the described concept
can contribute to the development of Kazakhstan’s capacity in the legal space. We do not propose a radical
change of the established coordination system. Let the managerial functions remain with the same bodies that
are performing them now. It should be noted that the proposed model is principally targeted to introduce the
following factors into the current mechanism:
•
speed of conducting the case;
•
quality of work and the desire for enhancing the lawyers’ professional skills;
•
raising public awareness, particularly, among the accused and the defendants, about their rights to
defense; and
•
extending the volume of legal aid provided by human rights organizations.
We hope that the above points will set things in motion and will inspire optimization and further development
of the free legal aid mechanism in Kazakhstan.
22
Smith, Roger. Models of Organization of a Legal Aid Delivery System // Access to Justice. Free Legal Aid in Central and Eastern Europe. Public Interest
Law Initiative, Columbia University Budapest Law Center, 2002.
Достарыңызбен бөлісу: |
