Chapter III
215
•
When legal aid is provided to the victim (Part 6 Article 75, Part 2 Article 80, Code of Criminal
Procedure).
It follows from the above law provisions that the law-makers do not determine which concrete circumstances
should justify the exemption (partial or complete) from payment for the legal aid. Moreover, the decision on
provision of free legal aid may be taken without regard to the defendants’ ability to pay for it or their desire
to have a counsel, namely in the cases when the participation of the defense counsel and a representative of
the victim are recognized by the law as obligatory, and when this decision is made by the body conducting the
legal proceedings (Article 71 of Code of Criminal Procedure).
Thus, the provisions of the Code of Criminal Procedure do not link the right to free legal aid with the financial
capacity (i.e., with the person’s level of income and property status) of the suspect, the accused, the convict, or a
minor victim. These regulations lead to the fact that the budget funds are not used for the intended purpose in
all cases: legal aid services are funded by the state even in those cases where the person has financial means
to pay for it, but applies for free services. This is proven by the fact that in the initial stage of investigation, the
inquiry and investigation authorities often appoint a lawyer, but at later stages of the criminal proceedings
the protection is ensured by this or any other defender upon agreement with the defendant, or the defendant’s
relatives, at their own expense. In addition to that, there are illegal occurrences when a counsel provides
legal aid as an appointed counsel and, at the same time, illegally receives payment from the defendant, thus
violating the requirements of the law on the lawyer’s ethics.
In this context, it appears that the right to free legal aid is to be granted only to those who have no financial
means to pay for it, as well as the persons belonging to vulnerable groups of population
25
.
In the
administrative proceedings the law-makers, like in the case of the Code of Criminal Procedure,
determine no special circumstances constituting the basis for excluding individuals from paying for legal
aid and do not take into account the defendant’s financial capabilities. Thus, as per Part 5 Article 590 of
the Code on Administrative Offence, the judge or 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. Besides
this, where requested by the defendant on the administrative offence case, the defense lawyer is provided by
the judge or the body (the official) authorized to consider cases on administrative offenses. In this case (i.e.
when the lawyer is appointed rather than being under a contract with the client) the counsel’s work can be
paid by the state (Part 6 Article 590, Code on Administrative Offences).
In view of the above facts, in both the criminal and administrative proceedings the provision of subsidized
legal aid should not be unlimited and the legislation must determine the range of persons eligible for such
assistance, as well as identify the circumstances which grant the right to free legal aid, in line with international
standards
26
.
In
civil proceedings, in contrast to the Code of Criminal Procedure and the Code on Administrative Offences,
the court must consider not only the property status of the person in need of legal aid, but also has to decide
on partial or full exemption of this person from paying for legal aid and reimbursement of the costs associated
25
Please refer to Section 3 on the groups eligible for free legal aid.
26
For more details please refer to Section 2 hereof.
FREE LEGAL AID IN KAZAKHSTAN
216
with the representation (Part 1 Article 114, Code of Civil Procedure). However, the law determines the cases
when the court must release the person, upon the application of the latter, fully or partially, from payment
for legal aid and compensation of the costs related to representation and put them on the expense account
of the state:
1. when considering disputes about compensation for harm caused by the death of a breadwinner,
physical injury, or other injury to health affecting the work; and
2. when considering disputes not related to business activities, where the plaintiffs or defendants were
participants in the Great Patriotic War or persons equated to them, active duty military people, the
disabled persons of groups I and II, and the retired by age (Article 114.1, Code of Criminal Procedure;
Article 6.1.1-2, Law on Legal Practice).
This list is believed to be quite small as the above provisions, being the “legacy” of the Soviet Code of Civil
Procedure of the Kazakh Soviet Republic, take no account of the changes associated with Kazakhstan’s
transition towards the market economy since the early 1990s, not to mention the ongoing significant changes
in the economy, property relations, production, trade, banking, and insurance activities, as well as other
areas of entrepreneurial and business activity. All this requires a broad legal outlook, in-depth knowledge
of legislation and law enforcement practices. Consequently, it is difficult to handle a civil case without the
assistance of a qualified lawyer. A particular difficulty arises for the cases where another party is represented
by the state or a legal entity (for example, the appeals regarding the size of pension, denial in providing social
benefits, provision of public housing, etc.), because in that situation any individual is initially legally weaker
than his or her counterpart. But not everyone has the opportunity to seek legal aid due to the lack of necessary
financial means to pay for the lawyer’s services. Therefore, I believe that the list specified in Article 114 of the
Code of Civil Procedure should be expanded to include cases of dispute where one of the parties is the state
represented by its bodies and officials or other legal entities.
A specific feature of civil representation is that alongside the counsels the representation may be performed by
other persons (Article 59.2-7 Code of Civil Procedure). In this connection it should be mentioned that the law
does not provide for the payment and compensation for the representation delivered by such other persons
while the procedures are outlined in terms of lawyers. (Article 111, Code of Civil Procedure).
In contrast with criminal and administrative proceedings, civil litigation requires the legal aid seekers to
substantiate their applications for exemption from paying lawyers’ fees by accompanying them with the
relevant documents and other proofs of their eligibility to benefit from free legal aid.
Upon consideration of the application, the judge – or the court – passes a justified ruling either on full or
partial release of the citizen from payment for the legal aid and compensation of the costs associated with
representation, or on the refusal to grant the application. The court’s ruling about the full or partial exemption
from payment of lawyer’s fees and costs compensation must be immediately forwarded to the bar association
that will provide a lawyer for this judicial process within the period established by the court. The legal aid for
the services rendered by the lawyer in that case would be paid from the state budget pursuant to the relevant
court ruling.
Достарыңызбен бөлісу: |