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rights and freedoms, as well as competent legal aid, which is also stipulated in Article 1.1 of the Law on Legal
Practice.
Fourthly, the ethical aspect is of no less importance – it is unacceptable to allow the vaguest doubts that the
allocated public funds would be used for the needs of the bar.
2. Organization of Primary, Emergency and Secondary Legal Aid
2.1. Organization of Primary Legal Aid.
Primary legal aid includes:
•
provision of information to a person about his or her rights associated with the provision of free legal
aid;
•
provision of oral and written advice on the legal issue submitted by the person and of information,
clarifications and recommendations as to whether and how the issue can be solved;
•
referral to a territorial office for secondary aid if there are grounds to do so; and
•
preparation of legal documents (claims, applications, queries, etc.), except service documents related
to criminal, civil and administrative cases.
Everyone should enjoy the right to primary legal aid irrespective of his or her income, although it should be
limited in time.
The territorial accessibility of primary legal aid should become an important factor of its effectiveness.
Primary legal aid may be provided by:
•
territorial offices of the National Council;
•
special structures (such as services, centers, etc.) to be established under maslikhats;
•
legal entities and individual entrepreneurs, the foundation documents of which include the provision
of legal services;
•
individuals and practicing lawyers engaged on a competitive basis to provide primary legal aid; and
•
other persons and agencies (non-profit organizations specializing in the provision of legal aid, legal
clinics of the institutions of higher education, paralegals, etc.).
Foreign experience (for example, that of Lithuania, South Africa, and Israel) suggests that it makes sense when
legal students do practical legal work under the supervision of an experienced attorney.
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2.2. Organization and Provision of Emergency Legal Aid.
Emergency legal aid is intended to ensure the right to defense in the event of detention or arrest.
Emergency legal aid includes:
•
clarifications provided by a lawyer to the detained person of his or her right to legal aid; and
•
the lawyer’s participation in urgent investigation or other activities that involve the presence of the
suspect and, subsequently, at every stage of the criminal process.
Emergency legal aid is needed when a person is detained under a criminal case or for an administrative
violation, or when a court considers a petition from criminal agencies for arrest or house arrest. In these
cases criminal agencies must promptly (for instance, within an hour) send a request to a territorial office
of the National Council to appoint a duty counsel. The list of duty counsels and their schedules must be
prepared monthly and be approved by the National Council. If a duty counsel is busy (for example, in court,
investigation, etc.), the lawyer who appears next in the schedule will be appointed. Sanctions should apply
where the sequence of duties is not observed.
In pursuance of Article 134.2 of the Code of Criminal Procedure (meeting with a lawyer in private and
confidentially before interrogation), no investigation or other procedural actions should take place in respect
of a detained person before a lawyer arrives. If a suspect refuses the lawyer’s services, this should be recorded
in a statement in the presence of the lawyer who has arrived. The experience of several foreign countries
proves that this procedure is effective as it helps:
•
first, ensure the right to defense for a suspect or a person whose arrest is being considered;
•
second, exclude any claims by a suspect (or an accused person, or a defendant) that he or she has been
subject to illegal treatment during investigation;
•
third, exclude illegal treatment intended to make a suspect (or an accused person) plead guilty of the
crime with which he or she has been charged; and
•
fourth, exclude corruption loopholes and opportunities to involve the so-called “in-pocket” lawyers,
who aid and abet law enforcement officers in ensuring conviction.
2.3. Organization and Provision of Secondary Legal Aid.
Secondary legal aid is intended to ensure the right to access to justice. This type of aid includes defense and
representation in court and other authorities in criminal, administrative and civil cases. The right to secondary
legal aid should be determined by factors such as the interests of justice and the financial capacity of a person
who has applied for free legal aid.
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Compared with the existing
ex officio model, the provision of secondary legal aid based on a contract between
the state, which is represented by a territorial office of the National Council, and a lawyer would be much more
effective as it would ensure:
•
the quality of the legal aid provided;
•
professional development of lawyers;
•
quality control of legal aid provided and control of financial spendings; and
•
no possibility to involve the so-called “in-pocket” lawyers or, consequently, use corruption “niches” in
the sphere.
The persons eligible for secondary legal aid should include:
•
any persons detained on suspicion of having committed a crime or an administrative violation and
arrested persons;
•
any persons to whom a lawyer or a representative must be provided in accordance with the Code of
Criminal Procedure, the Code on Administrative Offences, or the Code of Civil Procedure; and
•
any persons who have requested that a lawyer be provided in a criminal, administrative or civil case,
but who cannot afford it.
The possibility of the provision of legal aid with the applicant paying a portion of costs depending on his or
her income could also be included.
Secondary legal aid should be provided by:
•
lawyers permanently employed by a territorial office of the National Council;
•
lawyers included in the national register of lawyers providing legal aid under a contract with territorial
offices of the National Council; and
•
lawyers included in the register of duty counsels under an emergency legal aid contract with a
territorial office, with a fixed fee.
Following on from this, to ensure the efficiency of secondary legal aid, the bars, who are the main providers of
it, should be vested with the following functions:
•
coordination, together with territorial offices, of the provision of secondary legal aid by lawyers; and
•
quality control of the work of lawyers who provide secondary legal aid.
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