FREE LEGAL AID IN KAZAKHSTAN
232
Meeting of the Conference on the Human Dimension of the CSCE (1991)
51
obliges the states to ensure that
“anyone charged with a criminal offence will have the right to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require.”
Therefore, the above international statutes set forth that free legal aid is provided when (1) the interests of
justice so require and (2) the person who needs legal assistance does not have sufficient means to pay for it.
At the same time, the majority of international statutes that proclaim the right to subsidized legal aid, do not
have a direct provision covering access to free legal aid in non-criminal cases. However, international statutes
expressly provide for the state’s duty to ensure access to justice through subsidized aid for vulnerable groups
(minors, indigent persons, refugees, stateless persons, etc.) and victims of certain offences (cruel, inhuman or
degrading treatment or punishment, torture, etc.).
For example, the Convention on the Rights of the Child specifies that “the child […] needs special safeguards
and care” (Preamble) and sets forth that “every child deprived of his or her liberty shall have the right to prompt
access to legal and other appropriate assistance” (Article 37(d)) and that every minor alleged as or accused of
having infringed the penal law must be provided by the state with “legal or other appropriate assistance in the
preparation and presentation of his or her defense” (Article 40.(b: (ii)).
Concerning other vulnerable groups, the states are obliged to ensure effective remedies against discrimination
(Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination
52
), access for the victims
of an act of torture to compensation procedures (Article 14 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
53
), and the provision of the same treatment for refugees and
stateless persons as nationals in matters pertaining to legal assistance (Article 16 of the Convention relating
to the Status of Refugees
54
and Article 16 of the Convention relating to the Status of Stateless Persons).
For example, Article 16 of the Convention relating to the Status of Refugees and Article 16 of the Convention
relating to the Status of Stateless Persons set forth that refugees and stateless persons “shall enjoy […] the
same treatment as a national in matters pertaining to access to the courts, including legal assistance and
exemption from cautio judicatum solvi.”
Some international agencies and organizations have developed specific standards, based on the above
international statutes and proceeding from their own practical experience, governing the provision of
subsidized legal aid and measures that can be taken by the states to ensure the right to legal aid. The UN, for
example, has a number of documents related to these issues (e.g., Basic Principles on the Role of Lawyers
55
,
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
56
, Principles
for the protection of persons with Mental Illness and for the Improvement of Mental Health Care
57
, United
51
Signed on October 3, 1991.
52
Adopted by General Assembly resolution 2106 (XX) of December 21, 1965.
53
Adopted by General Assembly resolution 39/46 of December 10, 1984.
54
Adopted on July 28, 1951, by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under
General Assembly resolution 429 (V) of December 14, 1950.
55
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, August 27 to September 7, 1990.
56
Adopted by the UN General Assembly resolution 43/173 of December 9, 1988.
57
Adopted by the UN General Assembly resolution 46/119 of December 17, 1991.
Chapter IV
233
Nations Rules for the Protection of Juveniles Deprived of their Liberty
58
, United Nations Standard Minimum
Rules for the Administration of Juvenile Justice
59
, etc.).
Resolution (78) 8 On Legal Aid and Advice sets forth that “no one should be prevented by legal 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.”
Recommendation # R (93) 1 On Effective Access to the Law and to Justice for the Very Poor, promotes the
facilitation of “effective access to the courts for the very poor, especially by the following means: […] extending
legal aid or any other form of assistance to all judicial instances (civil, criminal, commercial, administrative,
social, etc.) and to all proceedings, contentious or non-contentious, irrespective of the capacity in which the
persons concerned act.”
Some documents state that if a detained, accused or imprisoned person does not have legal assistance of his
or her own choosing, he or she has the right to legal assistance appointed by a judge or judicial authorities if
the interests of justice so require. If a person cannot afford to pay for the services of a lawyer, he or she must
be provided with legal assistance free of charge
60
.
The European Council also pays significant attention to subsidized legal aid. It has adopted a number of
standards, recommendations, resolutions and directives governing the provision of legal aid, including
subsidized legal aid (such as the Charter of Fundamental Rights of the European Union
61
, Resolution (78) 8
On Legal Aid and Advice
62
, Resolution (76) 5 On Legal Aid in Civil, Commercial and Administrative Matters
63
,
Recommendation # R (93) 1 On Effective Access to the Law and to Justice for the Very Poo
r
64
, Recommendation
# R (2000) 21
On the Freedom of Exercise of the Profession of Lawyer
65
, Directive 2003/8/EC to Improve
Access to Justice in Cross-Border Disputes by Establishing Minimum Common Rules Relating to Legal Aid for
Such Disputes
66
, among others).
In many rulings, the European Court of Human Rights refers to not only the standards that govern the provision
of legal aid, but to the basic principles of its provision at the expense of the state (e.g., about the scope of
application of the right to free legal aid
67
; application of the financial criteria
68
; application of the criteria in
the interests of justice
69
; free legal aid in civil cases
70
; or the right to effective remedy and compensation
71
).
58
Adopted by the UN General Assembly resolution 45/113 of December 14, 1990.
59
Adopted by the UN General Assembly resolution 40/33 of December 10, 1985.
60
Principle 17(2) of the Body of Principles; Principle 6 of the Basic Principles on Lawyers participation; Rule 42(A)(i) of the Yugoslavia Rules; Rule
42(A)(i) of the Rwanda Rules; Article 21(4)(d) of the Yugoslavia Statute; Article 20(4)(d) of the Rwanda Statute; Article 55(2)(c) of the Statute of the
International Criminal Court.
61
Adopted on December 7, 2000.
62
Adopted by the EU Committee of Ministers on March 2, 1978, at a meeting of the Ministers’ Deputies.
63
Adopted by the EU Committee of Ministers on February 18, 1976, at the 254th meeting of the Ministers’ Deputies.
64
Adopted by the EU Committee of Ministers on January 8, 1993, at the 484th meeting of the Ministers’ Deputies.
65
Adopted by the EU Committee of Ministers on October 25, 2000, at the 727th meeting of the Ministers’ Deputies.
66
Adopted by the European Council on January 27, 2003.
67
See, for example, Golder v. UK (1975), Artico v. Italy (1980).
68
See, for example, Pakelli v. Germany (1985), Twalib v. Greece (1998).
69
See, for example, Benham v. UK (1996), Perks and others v. UK (1999).
70
See, for example, McVicar v. UK (2002), Steel and Morris v. UK (2005).
71
See, for example, Michael and Brian Hill v. Spain (1993) and other documents.
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