FREE LEGAL AID IN KAZAKHSTAN
230
The Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases
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sets forth that “nationals
of each Contracting Party and persons resident in it […] use free legal aid on the same conditions as its own
nationals.”
The Basic Principles on the Role of Lawyers
43
proclaim the right of any person “to call upon the assistance
of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal
proceedings.”
The Convention on the Rights of the Child
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obliges the states to ensure that “every child deprived of his or her
liberty shall have the right to prompt access to legal and other appropriate assistance,” and that every child
alleged as or accused of having infringed the penal law has the guarantees “to have legal or other appropriate
assistance in the preparation and presentation of his or her defense” (Articles 37(d) and 40.2(b)).
The UN Commission on Human Rights urges all the states to guarantee that “all persons brought to trial before
courts or tribunals under their authority have the right to be tried in their presence and to defend themselves
in person or through legal assistance of their own choosing” (Clause 4 of the Resolution on the Integrity of
the Judicial System
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).
Clause 2 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law
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sets forth that the states must ensure that their domestic law is consistent with their international
legal obligations by, inter alia, “adopting appropriate and effective legislative and administrative procedures
and other appropriate measures that provide fair, effective and prompt access to justice,” and make available
“adequate, effective, prompt and appropriate remedies.”
The right to competent legal aid is provided for by other international statutes as well. Some of them consider
the right to legal aid to include the right to legal aid subsidized by the state. In international documents, this
right is deemed the most important guarantee of the right to access to justice and fair trial, which incorporates
two components: (1) the right to receive free legal aid; and (2) the state’s duty to provide and finance it.
It ought to be noted that international documents provide for the right to such aid for not only suspects, the
persons accused, defendants, or the convicted persons, but for other groups as well, including victims of crime,
indigent people, and certain social groups (senior citizens, disabled persons, refugees, displaced persons,
stateless persons, patients at mental health, psycho-neurological, and medical-and-social institutions, foreign
nationals in rehabilitation centers, and certain other people).
Article 14.3(d) of the ICCPR sets forth that, everyone charged with a criminal offence has the right “to be
informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in
any case where the interests of justice so require, and without payment by him in any such case if he does not
have sufficient means to pay for it.”
42
Signed on October 7, 2002 // Bulletin of the International Treaties. 1995, #2.
43
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, August 27 to September 7, 1990
44
Adopted by General Assembly resolution 44/25 of November 20, 1989.
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Adopted by the Commission on Human Rights at the 58
th
session in April, 2002.
46
UN Guidelines dated July 25, 2009 (D).
Chapter IV
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Article 6.3(c) of the ECHR provides that every person accused has the right “if he has not sufficient means to
pay for legal assistance, to be given it free when the interests of justice so require.”
Clause 3 of the Basic Principles on the Role of Lawyers obliges the governments to “ensure the provision of
sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged
persons. Professional associations of lawyers shall cooperate in the organization and provision of services,
facilities and other resources.” Clause 6 of these Principles reads: “Any such persons [detained persons, suspects,
accused persons, or defendants] who do not have a lawyer shall […] be entitled to have a lawyer of experience
and competence commensurate with the nature of the offence assigned to them in order to provide effective
legal assistance, without payment by them if they lack sufficient means to pay for such services.”
Article 7.3(c) of the Commonwealth of Independent States Convention on Human Rights and Fundamental
Freedoms (Minsk, May 26, 1995)
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provides that everyone charged with a criminal offence has the right to
“defend himself in person or through legal assistance of his own choosing or to have legal assistance assigned
to him whenever the interests of justice so require, as well as to be provided with legal assistance free of
charge in cases specified in national legislation.”
In accordance with Article 93 of the Standard Minimum Rules for the Treatment of Prisoners
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, “for the purposes
of his defense, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and
to receive visits from his legal adviser with a view to his defense.”
Principles 17 and 18 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment
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provide that a detained or imprisoned person has the right to not only “communicate and
consult with his legal counsel”, but “if a detained person does not have a legal counsel of his own choice, he
shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the
interests of justice so require and without payment by him if he does not have sufficient means to pay.”
The Council of Europe Committee of Ministers’ Resolution 78 (8) on Legal Aid and Advice signed on March 2,
1978, sets forth that “the provision of legal aid should no longer be regarded as a charity to indigent persons
but as an obligation of the community as a whole,” and that “facilitating the availability of legal advice as a
supplement to legal aid for persons in an economically weak position is of equal importance in the elimination
of obstacles to access to justice” (Preamble). It also states that “no one should be prevented by economic
obstacles from pursuing or defending his rights before any court determining civil, commercial, administrative,
social or fiscal matters. To this end, all persons should have a right to necessary legal aid in court proceedings”
(Clause 1).
Article 5.17 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the
CSCE (1990)
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provides that “any person prosecuted will have the right to defend himself in person or through
prompt legal assistance of his own choosing or, if he does not have sufficient means to pay for legal assistance,
to be given it free when the interests of justice so require.” In addition, the Document of the Copenhagen
47
Informational Bulletin of the CIS Council of the Heads of State and Council of the Heads of Government. 1995, #2.
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Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by
the Economic and Social Council by its resolutions 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977.
49
Adopted by UN General Assembly resolution 43/173 of December 9, 1988.
50
Signed on June 29, 1990.
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