FREE LEGAL AID IN KAZAKHSTAN
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Concept Paper is open to further discussion, amendment and improvement in the course of team work with
representatives of all branches of Government and civil society.
The current situation
In the Republic of Kazakhstan everyone is entitled to receive free legal aid in criminal, civil and administrative
cases to the extent permitted by the applicable law. The cases and orders for providing such legal aid are
governed by relevant regulations and standards in the Criminal Procedure Code of the Republic of Kazakhstan
(hereafter CrPCRK), the Civil Procedure Code of the Republic of Kazakhstan (hereafter CiPCRK), and the Code
of Administrative Infringements of the Law of the Republic of Kazakhstan (hereafter CAILRK).
The main comments made about the legal aid currently provided at the expense of the state budget, relate to
its low quality, its archaic nature, and its inaccessibility. The status quo is generally explained by the low fees
paid to lawyers; a lack of clear information on how citizens are provided with legal aid; a lack of transparency
regarding the terms on which lawyers are to provide legal aid in criminal cases, as per Article 71 of the CrPCRK,
and in administrative cases, as per Article 590 of the CAILRK; persistent corrupting relationships between
individual lawyers and employees of law-enforcement authorities; and the gaps and imprecise regulations
regarding the provision of public legal services in civil cases, as per Article 114 of the CiPCRK.
Being drawn into participating in a case by the body leading the criminal investigation, lawyers are paid
according to the provisions of this body, only after their labor costs are approved. The result is that lawyers are
sometimes encouraged to take a liking to a judge, or even worse to their adversary in the procedure, rather
than to the defendant.
In addition, because of a generally low level of legal culture citizens do not generally know how to find a
lawyer when they need one. Besides, there is a pernicious view widespread among the public that giving a
bribe to an investigator, prosecutor or judge can solve almost any legal problem.
As partly prescribed by law, the procedure for engaging lawyers in specified cases thus creates conditions for
corruption and abuse, on the part of both the investigators and some unprincipled lawyers. It is clear that both
the law and the application of the law in practice should rule out the possibility of such occurrences.
5
As to civil cases the law does not define clearly when exactly citizens can take legal advice at public expense,
instead deferring the matter to the discretion of the judge, except in certain specific instances (Section 33 of
Article 304 of the CiPCRK)
6
. Clearly, assigning a lawyer in such cases entails additional legal activities, imposes
a degree of constraint on legal investigations, requires the processing of relevant financial documents, and
involves spending budget funds. It seems that this is precisely why the volume of free legal aid provided to
citizens in civil cases is ten times less than the volume provided in criminal cases.
5
It has to be noted that this is a universal problem. For instance, until not long ago judges in Israel themselves appointed defense lawyers in certain
categories of case, and at the end of the process stated the amount the lawyers should be paid. ‘As a result the lawyers often suffered from a “split
personality”, when their commitment to protecting the defendant was in conflict with the temptation to please the court. Thus the appointed lawyer
often abstained from determinedly promoting the case of the accused, especially when the judge had already formed a negative opinion about it.’ See
Moshe Hacohen (Public Defender in Jerusalem), ‘Israel’s Public Defender Bureau: Lessons from the Past, Plans for the Future’ in Access to Justice: the
Issue of Gratis Legal Aid in the Countries of Central and Eastern Europe, (Budapest: Public Interest Law Initiative, Budapest Law Center of Columbia
University, 2002, p. 555).
6
Article 114 of the CiPCRK
Chapter I
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With respect to administrative cases the law also provides for citizens to have the right to legal advice at the
cost of the state in a number of types of case (Article 589 of the CAILRK). But in practice it is extremely rare
for judges to get lawyers to play such a role.
This state of affairs cannot be regarded as normal so long as administrative responsibility is such that its
neglect can incur punishment involving the limitation of civil rights, including such fundamental ones as the
right to freedom and the inviolability of privacy
7
. Under these circumstances and in line with Article 14 of the
ICCPR the participation of lawyers in such cases is obligatory and the state should provide citizens with the
right to defense.
There can be no doubt that the situation regarding the assignation of defense lawyers must be put right, while
conditions that lead to abuses in this field must be done away with. Statistics show that in most cases lawyers
do not take on cases on the basis of an agreement but according to the provisions of Article 71 of the CrPCRK
8
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and are paid at the rate of the equivalent of approximately $4 per hour. Given this, under existing conditions
such lawyers can only make a living by increasing the number of hours worked, sometimes to the detriment of
the quality of the work they perform.
2. Proposals on improving the system
2.1. General principles of reform
Generally speaking every citizen of society has the right to count on the provision of qualified legal aid at the
expense of the state budget, regardless of the type of activity. For its part the state ought to provide such aid,
but expects a reasonable and careful attitude towards resources spent in this disinterested way. As for the
legal profession, it is bound by its professional responsibilities to help the state resolve this issue, while at
the same time having the right to demand decent pay for lawyers’ labor and normal conditions for such work.
Here another question arises: why should Bar Associations carry out this mission? Theoretically, representatives
of NGOs (non-governmental organizations) or lawyers working as the employees of specific institutions
and paid for from the local or state budget could be permitted to provide such aid. In juridical forums NGO
representatives often refer to their successful experience in providing legal consultations and in appearing in
court to defend the interests of clients representing vulnerable groups, and thus offer their services in the field
of perfecting the system of legal aid.
At present there is also discussion about the idea of creating groups of so-called ‘municipal’ or ‘state’ advocates,
on the assumption that groups of lawyers under local executive bodies or bodies of justice paid from the state
budget and acting as alternatives to the Bar Associations could provide legal aid to people who cannot pay
for such aid independently
NGOs no doubt have the right to provide legal aid so as to protect the rights and freedoms of citizens, including
aid that requires the use of public funds. However, it should be appreciated there is a difference between
7
For example infringements of the law as provided for in Articles 330 and 336 as well as other parts of the CAILRK may be punished by administrative
detention for a period of 15 days.
8
Report on Almaty Bar Assosiation activities from 2002 till 2005
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