Chapters’ Executive Summaries
181
3. The law does not stipulate the procedure for appointment of lawyers providing subsidized
legal aid.
4. Low pay rates for the work of lawyers in this field, which leads to a formal nature of legal aid
provided.
5. Primary legal assistance is not actually provided.
2. Proposed Measures to Create an Effective System of State-Subsidized Legal Aid
In order to eliminate the above negative factors in the provision of subsidized legal aid it is essential to reform
the current system of providing and paying for legal aid—by means of creating legal, resource and institutional
facilities for implementation of the rights guaranteed by the Constitution to each citizen (and primarily to
the poor and vulnerable groups) for free legal aid. These principles should be reflected in the Concept of
Guaranteed Subsidized Legal Aid and the state program for its implementation, whose main goal should be the
creation of infrastructure aimed at ensuring management (administration) of the legal aid delivery.
The platform for the delivery of legal aid has been established in this country. Government Resolution # 1202
of December 23, 2008, On the Strategic Plan of the Ministry of Justice of the Republic of Kazakhstan for 2009-
2011 envisages as one of its strategic components the improvement of the legal framework regulating the
legal practice so as to ensure 100% access to free legal services for the population in the cases provided for
by the applicable law. Secondly, the President’s Decree # 85 of August 24, 2009, On the Concept of the Legal
Policy of the Republic of Kazakhstan for 2010-2020 determines the main focus of the delivery of legal aid as
its accessibility by the economically disadvantaged categories of the population.
The following system of management (administration) of subsidized legal aid delivery is proposed: 1) the
Ministry of Justice; 3) the National Council on State-Guaranteed Legal Aid (hereinafter “the National Council”);
4) territorial offices for provision of subsidized legal aid; 5) maslikhats; 6) the bar associations; and 7)
specialized bodies for the provision of primary legal aid.
The Ministry of Justice, as the leading agency responsible for the public policy process, should be charged with
the organization and ensuring the functioning of the subsidized legal aid system.
The National Council, as an independent collegiate body, consisting of five to seven members (representatives
of the interested parties—lawyers, NGOs, academics, officials of the Ministry of Justice, social agency workers,
that is, persons working within the legal aid system, etc.) will be responsible for the implementation of legal
aid public policies and the management (administration) of the process of subsidized legal aid. The executive
office of the National Council will carry out its activities.
FREE LEGAL AID IN KAZAKHSTAN
182
The territorial offices of the National Council, which should be established in the regions as per the
administrative-territorial principle (in the cities and districts) should be in charge of organizing and providing
subsidized legal aid. Their activities should be based on a mixed model.
The maslikhats should be responsible for providing organizational support to primary legal aid.
The bar associations shall be responsible for quality assurance and control of subsidized legal aid, development
of the criteria for selection of the lawyers to participate in the competition for the provision of subsidized legal
aid, etc.
The specialized bodies (for example, services or centers established within the maslikhats as well as other
structures and persons specializing in providing legal aid, law clinics, paralegals) shall be in charge of providing
primary legal aid.
3. Expected Results
The proposed model of management (administration) of the provided subsidized aid will help create effective
legal and organizational mechanisms for its implementation, ensure proper procedure for the provision of
such aid as well as its quality, the efficient use of budget resources, and the control over the quality of the
provided legal aid.
In addition to this, the model will make it possible to forecast the qualitative and quantitative indicators of
the access to justice, as well as avoid formalism, conflicts and other negative phenomena. Naturally, setting up
the structure will involve some financial costs. But at the same time, it will relieve the criminal prosecution
agencies, the courts and the judiciary bodies of the issues associated with providing appointed lawyers.
Chapter I
183
Chapter I
On Perfecting the System of Providing Legal Aid at the Expense of the State
Budget
3
Kanafin D
.
Introduction
The right to enjoy the protection of legal aid is one of the fundamental rights defining the legal status of an
individual in a free and democratic state.
Article 13 Section 3 of the Constitution of the Republic of Kazakhstan states:
Everyone shall have the right to qualified legal assistance. In cases stipulated by law, legal assistance shall be
provided free of charge.
The Government of the Republic of Kazakhstan has ratified the International Covenant on Civil and Political
Rights (hereafter ICCPR), Article 14 Section 3 of which states:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum
guarantees, in full equality…(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; 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.
Nowadays the issue of how to put these statements into practice is a much debated one. The problem of
perfecting a system of publicly funded legal aid is being discussed at the highest level; it has become a subject
of debate not only among legal professionals but also in the mass media, and is of very broad interest to the
populace as a whole. The official concept paper on legal policies in the Republic of Kazakhstan for the period
2010 to 2020 states that the system of providing legal aid to lower income groups should be a prime target
for improvement
4
.
Unfortunately, in legal literature and other special official sources there have been no recommendations to
date on how to improve legislation and its implementation in this field.
The present Concept Paper is a theoretical model of one of the ways to reform the system of legal aid at
the expense of the state budget. Some of the recommendations made here may seem controversial. The
3
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.
4
Kazakhstanskay pravdadated 27 August 2009
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