Chapter III
219
•
the lack of a quality assurance system for free legal aid, and methods of its evaluation;
•
the lack of quality control system for free legal aid;
•
a Soviet-style procedure of appointing a counsel through the bar association which does not comply
with modern international standards in this area and fails to ensure proper quality of legal aid;
•
the existing appointment and remuneration system makes the lawyers dependent on the bodies
involved in the criminal process, and results not only in the loss of financial motivation to provide
legal aid, but also adversely affects the quality of such aid;
•
representation in civil proceedings, according to the Code of Civil Procedure, can be performed by any
person, irrespective of whether they have legal education, which negatively affects the quality of their
legal aid;
•
the lack of mechanisms for enforcement of the legislated right to legal aid for the person convicted to
imprisonment at the stage of the execution of judgment, as well as the lack of a program envisaging
the corresponding budget for this;
•
the lack of the system of primary legal aid delivery as well as the system for legal awareness and legal
education of citizens;
•
the small number of attorneys in the community and the low professional level of some part of it, as
well as some other shortcomings.
In this context it is necessary to point out that the major part of these drawbacks are characteristic of the CIS
countries – and, until recently, for the overwhelming majority of the Central and Eastern Europe countries
before the state-subsidized aid system was introduced
30
. These drawbacks were accounted for by the poor
practical implementation of the relevant legal provisions
31
.
The mentioned deficiencies of the free legal aid delivery system call for a review of the principles of its provision
as well as establishment of the special independent autonomous system for management (administration) of
free legal aid. Therefore the way out of this situation is seen in the need to set up an effective model for
management (administration) of the provided subsidized aid, the development of effective legal mechanisms
for its implementation in Kazakhstan, that could ensure proper procedure for the provision of such aid as well
as its quality, the efficient use of budget resources, the control over the quality of the provided legal aid, etc.
The stages of the creation and development of the free legal aid system should be clearly identified. For
example, at the initial stage it is possible to implement a pilot project on establishing a subsidized legal aid
system in the country as well as centers (bureaus, offices) of public lawyers for provision of free legal aid on
criminal cases. If successful, it will be necessary to conduct analysis and consider the issue of increasing the
volume and content of the provided subsidized legal aid. A staged approach to introduction of the subsidized
legal aid system will make it possible to forecast the quantity and quality indicators of the access to justice,
as well as avoid formalities, conflicts and other negative effects. Naturally, setting up the system will involve
30
Access to Justice in Central and Eastern Europe. Country Reports. Budapest, 2003. Page 7-40.
31
N. Chriptievsky. Review of New Legal Provisions and Initiatives in free Legal Aid in Central and Eastern Europe after December 2002. www.pili.org.
FREE LEGAL AID IN KAZAKHSTAN
220
financial costs. But alongside that, it will release the criminal prosecution and justice bodies from the function
of providing appointed counsels.
Some of the drawbacks listed above have been officially recognized at an official level. For example, talking
of the small number of the legal community caused by the problematic access to the profession of a lawyer,
Minister of Justice Rashid Tusupbekov mentioned the following figures: 9,179 citizens are licensed to practice
law but only 3,795 persons are counsels (41%)
32
. Saying this Mr. Tusupbekov notes: “Apart from the license the
current law requires obligatory membership in the bar association. To enter the association one should pay
a first membership (entrance) fee whose amount varies from 116,000 to 518,000 tenge. Moreover, to pass
obligatory internship a lawyer annually pays from 60,000 to 194,000 tenge to the territorial bar associations.
Thus, prior to the beginning of their professional careers the candidates for the lawyer’s status have to pay on
average some 700,000 tenge. The mentioned circumstances make the job of a defense counsel inaccessible
for the lawyers, which is one of the reasons behind the human resources deficit to ensure free legal aid
guaranteed by the Constitution.”
33
This point is stated in another document – the draft Financing Agreement between the Government of
Kazakhstan and the Commission of European Communities adopted by Governmental Resolution # 1319 of
December 31, 2008, states: “After gaining independence, the institution of legal service has not adequately
developed. The lawyers’ professional skills, as a rule, are insufficient, […] lack of quality assurance in Kazakh
bar associations has resulted in rather poorly trained lawyers who, during court cases, usually succumb to
better trained judges and prosecutors.”
34
.
2. The Proposed Model of Subsidized Legal Aid in Kazakhstan
The analysis of subsidized legal aid systems in foreign countries shows that such assistance will only be
effective when all of the functions for its organization and coordination are concentrated in one body, with
independent legal status. Therefore, given the best practices of foreign state-guaranteed legal aid systems,
as well as their shortcomings, it appears that there is a long-felt need in Kazakhstan to introduce a system of
guaranteed subsidized legal aid, which should envisage, in my view, several stages, as listed below.
I. First of all, there is a need for a Program for the Development of State-Guaranteed Legal Aid
(hereinafter “the Program”). The content of the Program as well as the applicable standards should
be based on the international instruments pertaining to legal aid, including its free provision. I
believe that the Program should envisage the following:
1. development of the Concept of Improving the System of State-Guaranteed Legal Aid;
2. estimation of the costs associated with the reform of subsidized legal aid;
3. development of a model system of administration (management) of subsidized legal aid;
4. the basics (principles) of the organization of primary, secondary, and emergency legal aid;
32
R. Tusupbekov. Defending the Constitutional Rights // Kazakhstanskaya Pravda, October 20, 2000.
33
Ibid.
34
The Legislation of the Republic of Kazakhstan electronic database.
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