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Foreword
Access to free legal aid is an integral part of ensuring access to fair justice warranted by international
obligations of Kazakhstan and secured by its constitution. Article 14.3 (d) of International Covenant on Civil
and Political Rights ratified by Kazakhstan states that everyone has the right for defence. Article 13 of the
constitution of Kazakhstan provides the right to get qualified legal aid.
Open democratic society is unthinkable without a secured right of an individual for defence at the court.
During the last decade an issue of reforming free legal aid provision mechanisms has been actively debating.
However, the question of elaborating of a single approach to the further development of holistic system of
free legal aid provision remains open.
This publication provides the reader with analysis of existing practices of organization and delivery of free
legal aid in Kazakhstan. Analysis aims at drawing up recommendations for further development the entire
system of free legal aid provision.
Experience suggests that for the effective strategy of reforming the system of free legal aid provision it is
necessary to engage all stakeholders – the bar, civil society as well as state’s political will. Soros Foundation-
Kazakhstan supports existing dialog of interested parties on elaboration of optimal approach to reforming
subsidized legal aid in the country. I hope this publication will facilitate consensus towards choosing effective
reform strategy of the free legal aid provision system and transferring such system into a real mechanism for
human rights protection and wider access to justice.
The materials of this publication are prepared by Daniyar Kanafin within expert working group of the Advisory
Council of the Dialogue Initiative Project
(Chapter I), Eugeniy Golenduhin with participation of the Regional
Centre for New Information Technologies employees (Chapter II) и Gulnara Suleimenova (Chapters III и IV).
Anna Alexandrova
Chair, Executive Council
Soros Foundation-Kazakhstan
Foreword
FREE LEGAL AID IN KAZAKHSTAN
176
On Perfecting the System of Providing Legal Aid at the Expense of the
State Budget
2
(Executive Summary for Chapter I)
Pursuant to the Constitution of the Republic of Kazakhstan, every citizen has the right to
competent legal assistance. In some cases, the state is obliged to provide this assistance
to its citizens for free.
Currently, the right to counsel at public expense is guaranteed for cases specified by law. Unfortunately, this
right is by no means always properly enforced. The investigator is rarely interested in having a qualified lawyer
in the early stages of the investigation process. Not all lawyers are eager to work with full dedication for the
quite small salary allocated by the state budget. When it comes to civil and administrative cases, the volume
of free legal aid is very small. The grounds for provision of public counsel are very ambiguously described in
the law.
When applied, all this creates some problems with the quality, timeliness, and accessibility of legal aid.
Unfortunately, citizens cannot always count on the legal representation of their rights and interests, even in
those situations where, in their opinion, it is necessary.
It is possible to improve the legal aid procedures. How could this be done? Some ideas on this issue are
presented for discussion in this analysis.
1.
It is deemed expedient to authorize one public agency—the Ministry of Justice—to manage legal aid
funding from the state budget, rather than disburse the funds among all law enforcement agencies, as
is currently the case.
2.
The management of publicly funded legal aid should be coordinated and supervised by structures
consisting of state representatives, lawyers, and civil society.
3.
We believe it to be necessary to continue strengthening the bar, as a civil society institution, and make
the provision of budget-funded legal aid its exclusive jurisdiction, both for criminal cases, and for civil
and administrative cases considered in the courts.
4.
With a view to promoting human rights institutions, it is crucial that non-governmental organizations
providing legal assistance to people in the form of counseling and ensuring representation in the
public bodies, which are outside the judicial system of Kazakhstan, are supported.
2
This study is made possible by the support of the American people through the United States Agency for International Development (USAID). The
contents are the sole responsibility of the author and do not necessarily reflect the views of USAID or the United States Government.
Chapters’ Executive Summaries
177
5.
The law should clarify who has the right to publicly funded legal aid and in which cases. We should
preserve the existing procedure, which implies that assistance must be provided free of charge to
all people brought to justice, at their request, within criminal and administrative processes. In a
civil proceeding, it might be expedient to envisage providing free legal aid in varying degrees, for
example, state funds for counseling and drafting basic documents, as primary legal aid, and legal
aid in full volume, consisting of representation in the court and public bodies, but only for specific
vulnerable groups of citizens (e.g., the disabled, the poor, Oralman, orphans, etc.). In addition to that,
the law should explicitly list the categories of civil cases in which budget-funded legal aid is available
to anyone (for example, disputes with government agencies on the legality of their actions, labor,
environmental disputes, etc.).
The right to competent legal assistance is a guarantee of the fundamental principles of a democratic society
such as personal freedom, the right to access to justice, the presumption of innocence, respect for a person’s
honor, dignity, and many others. The welfare and safety of each citizen ultimately depends on how efficiently
and reasonably the provision of this assistance is organized. Therefore, solving this problem is essential and
calls for proper attention from the society and state.
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