FREE LEGAL AID IN KAZAKHSTAN
178
On Recommendations for the Development of a New Model for the
Provision of Free Legal Aid in Kazakhstan
(Executive Summary for Chapter II)
Shortcomings of the existing model
The model for providing publicly funded legal aid in criminal cases that is currently applied in Kazakhstan
implies that a lawyer is appointed by state representatives. Usually it is a duty lawyer or any other lawyer who
agrees to serve as an appointed counsel. The main disadvantages of the appointed lawyers system are the low
rates of remuneration, lack of incentive for, and control over, the defense process. These factors, in their turn,
entail other drawbacks, such as the low professional level of the lawyers, and their formal attitude. In addition
to that, the time based payment system coupled with the low rates pushes the lawyers to drag out the process,
and favors corruption.
The conceptual framework of the proposed model
The key to the proposed model is making the appointed lawyers interested in the outcome of the case. For
this purpose we propose introducing a contingent fee, which will be paid to the lawyer as kind of a bonus for
the positive outcome (it is not compulsory to have a one hundred percent result). Further, it is suggested that
the system of payment to appointed lawyers be reformed, making it dependent not on the hours spent on
the defense process, but on the complexity of the case. The remuneration will be calculated by determining
the level of the case in line with a wage scale. In addition to that, we propose involving organizations that
could serve as defense representatives (in particular areas), human rights non-governmental organizations,
and legal clinics (with the opportunity to fund their defense activities from public funds). This step will help
generate healthy competition within the bar. Our concept is also expected to reduce the number of people
applying for free legal aid, thus increasing the amount allocated to the defense of one individual person. Thus,
we propose introducing a judicial insurance system in the country where every person who pays contributions
against the insured event, i.e. the need for legal defense in criminal proceedings, will be able to hire a lawyer
and pay them compensation according to the official average rates applied from judicial insurance funds. It is
especially important that the system be able to motivate people to insure themselves against administrative,
civil and criminal cases.
Chapters’ Executive Summaries
179
Expected results:
•
increased interest of lawyers in improving the quality and speed of pursuing the cases;
•
simplified scheme for the calculation, payment, and remuneration of attorneys;
•
boosting the activities of legal clinics and human rights non-governmental organizations will create
competition with attorneys’ associations to provide free legal assistance;
•
introduction of a legal insurance mechanism will reduce the number of possible applicants for free
legal aid, which, in its turn, will contribute to increasing the fee rate for appointed lawyers, once the
new payment model is applied;
•
raising awareness about the mechanism of providing and paying for publicly funded legal aid will
also step up competition among appointed lawyers and alternative options of providing legal aid; and
•
the increased fee rates for appointed lawyers will boost the competition in their environment which
will create the opportunity for quality defense services to be provided.
FREE LEGAL AID IN KAZAKHSTAN
180
On Subsidized Competent Legal Aid in Kazakhstan: Legal Regulation,
Organization, and Implementation
(Executive Summary for Chapters III and IV)
1. Need for State-Subsidized High-Quality Legal Aid
Article 13 of the Constitution of the Republic of Kazakhstan proclaims the right of everyone to free legal
assistance in the cases stipulated by law. However, no clear streamlined legal mechanism has been introduced
so far to implement this constitutional provision; neither has the law sufficiently guaranteed the quality of the
provided legal aid. In particular:
•
No significant changes in terms of legal aid provision have been made over the years of judicial and
legal reforms in the country;
•
The cases provided for by law as being eligible for the provision of free legal aid, as well as the
organization of the aid, do not meet international standards or the current social needs associated
with the various complicated types of legal relations, emerging and evolving in the context of market
economy, and their legal regulation;
•
So far, no concept or public policy program to enforce the right to state-guaranteed legal aid has been
developed. The law only regulates some issues of legal aid provision but a single system that would
organize and provide real access to legal assistance (first of all, to primary legal aid) does not exist;
•
Kazakhstan lacks a single system that would ensure the right to free legal assistance for the low-
income citizens and other socially vulnerable categories. Moreover, the categories of citizens eligible
to receive free legal aid are extremely limited, as is the range of circumstances specified by the
applicable law, in which such assistance is granted;
•
The existing system of legal aid delivery breaks the principle of equal access to justice, the essential
element of which is everyone’s right to competent legal aid;
•
The provision of legal aid is not regulated for other issues not related to judicial recourse, such as the
provision of legal information and legal advice (i.e. primary legal aid); and
•
The provision of subsidized legal aid is imposed on the bar associations who cannot cope with this
task for the following reasons:
1. The small community of attorneys in the country.
2. Lack of quality control over state-subsidized legal aid and over legal aid in general.
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