Chapter III
227
Lawyers’ compensation:
•
lawyers that are permanently employed by a territorial office of the National Council will receive fixed
monthly salaries irrespective of how much work has been done; and
•
lawyers who provide legal aid under a contract will be paid for each criminal case separately. The
amount of compensation should be determined based on the following factors: time spent on a case,
its complexity, and other criteria to be set forth by special regulations.
2.4. Criteria for Identifying the Need for Subsidized Legal Aid.
For a legal aid system to be successful clear eligibility criteria should be determined. These should include:
•
a financial factor (a person requesting free legal aid must prove that he or she cannot afford to pay
for legal services); and
•
the interests of justice (legal and factual complexity of the case; incapacity of an accused person to
defend himself or herself).
For this reason, there should be two types of secondary legal aid:
1. legal aid provided irrespective of the financial capacity of the person; and
2. legal aid provided depending on his or her financial capacity.
In the first instance, the following persons should be eligible for free legal aid:
•
those detained on suspicion of having committed a crime or administrative violation;
•
those eligible for free legal aid in accordance with the Code of Criminal Procedure, the Code of Civil
Procedure, or the Code on Administrative Offences;
•
the disabled (groups 1 and 2);
•
veterans of the Great Patriotic War;
•
unemployed pensioners who receive old-age pensions;
•
those detained in mental health in-patient clinics by court order to apply compulsory medical
measures or otherwise involuntarily;
•
those with severe mental illness when their involuntary hospitalization and treatment are being
considered in accordance with Law of the Republic of Kazakhstan # 96-1 dated April 16, 1997, On
Mental Health Services and Treatment and Guarantees of the Rights of Citizens Who Receive Mental
Health Services, and they need legal aid to protect their rights and interests;
FREE LEGAL AID IN KAZAKHSTAN
228
•
foreign nationals who have become victims of violations of human rights and have applied for asylum;
•
disabled children and children in psycho-neurological institutions and special education schools and
boarding schools); and
•
other persons pertaining to socially vulnerable groups.
In the second instance, the following persons should be eligible for free legal aid:
•
those who permanently reside in Kazakhstan and who are eligible for the aid in accordance with
international treaties of Kazakhstan, the property and annual income of which do not exceed the
limits set by the Government of Kazakhstan as qualifying for the provision of legal aid in accordance
with the laws governing guaranteed subsidized legal aid;
•
those entitled to targeted social assistance in accordance with Article 2 of Law of the Republic of
Kazakhstan # 246-II dated July 17, 2001, On State Targeted Social Assistance (refugees, foreign
nationals and stateless persons who reside permanently in Kazakhstan and whose per capita income
does not exceed the poverty line);
•
those entitled to a social allowance in accordance with Law of the Republic of Kazakhstan # 126-I
dated June 16, 1997, On State Social Disability, Survivors, and Old-Age Allowances in the Republic of
Kazakhstan; and
•
senior citizens and the disabled who live permanently in state rest homes.
The experience of foreign systems of subsidized legal aid suggests determining three main methods for
carrying out the means test.
The first method sets a means test threshold, which divides all citizens into two groups: (1) citizens eligible
for legal aid that is fully paid by the national budget; and (2) citizens not eligible for any state support. This
method is used by Italy, the U.S., South Africa, Ireland, Slovakia, and some other countries. In some countries,
the means test threshold is a percentage or portion of the minimum subsistence level (in the U.S., for example,
this threshold is 125% of the poverty level for households of a certain size)
35
.
The second method envisages the provision of subsidized aid to not only the poorest groups, but also to citizens
whose living standards are close to average. In the latter case, the state pays for a portion of legal services
and the remainder is paid by the recipient. The amount paid by the state depends on the citizen’s income: the
higher the income, the lower the state assistance. This method is used by many European countries, including
Germany, Sweden, the Netherlands, the U.K., Belgium, and France
36
.
The third method assesses the financial status of a person requesting subsidized aid. In each case, in addition to
the assessment of income and property, his or her expenses are assessed and the financial status is compared
with the anticipated cost of the requested legal services
37
.
35
International Experience in Providing Free Legal Aid. Moscow: Public Interest Law Institute, p. 8.
36
Ibid, p. 8.
37
Ibid, p. 10.
Chapter IV
229
Chapter IV
International Standards and Best Practices of the Provision of Subsidized
Legal Aid.
Suleimenova G.
1. International Standards Governing the Provision of, and Ensuring of the Right to,
Competent Legal Aid
Many international documents governing human rights and their guarantees proclaim the right to effective
legal aid - an integral part of everyone’s right to access to justice. The Universal Declaration of Human Rights
38
obliges the UN member states to ensure that everyone charged with a penal offence has the right to a fair and
public hearing by an independent and impartial tribunal at which they have had all the possibilities necessary
for their defense (Articles 10 and 11.1).
Article 2.3 of the International Covenant on Civil and Political Rights (ICCPR)
39
obliges the states “(a) to
ensure that any person whose rights or freedoms […] are violated shall have an effective remedy […]; (b) to
ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority provided for by the legal system
of the State, and to develop the possibilities of judicial remedy; (c) to ensure that the competent authorities
shall enforce such remedies when granted.”
The European Convention on Human Rights and Fundamental Freedoms (ECHR)
40
proclaims that “everyone
whose rights and freedoms […] are violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an official capacity” (Article 13)
and that everyone charged with a criminal offence has the right “to defend himself in person or through legal
assistance of his own choosing” (Article 6.3(c)).
Article 1 of the Convention on International Access to Justice
41
sets forth that “nationals of any Contracting State
and persons habitually resident in any Contracting State shall be entitled to legal aid for court proceedings
in civil and commercial matters in each Contracting State on the same conditions as if they themselves were
nationals of and habitually resident in that State.”
38
Adopted and proclaimed at the Third Session of the United Nations General Assembly by resolution 217 A (III) of December 10, 1948. // International
Human Rights Statutes: A Collection of Documents. Moscow: Norma-Infra-M, 1998. Pages 39–43.
39
Adopted by UN General Assembly resolution 2200A (XXI) of December 16, 1966 // Bulletin of the International Treaties of the Republic of Kazakh-
Adopted by UN General Assembly resolution 2200A (XXI) of December 16, 1966 // Bulletin of the International Treaties of the Republic of Kazakh-
stan. 2006, #4, p. 30.
40
Adopted on November 4, 1950 (as amended on September 21, 1970, December 20, 1971, January 1, 1990, November 6, 1990).
41
Adopted on October 25, 1980.
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