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LEGAL AID IN KAZAKHSTAN
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defendant’s rights and legal interests. In such a situation justice demands the involvement of a lawyer in all
cases, regardless of the ability or inability of the defendant to meet the lawyer’s costs.
Besides, it has to be noted that it is practically very hard to develop a way of defining the property qualification
required to enjoy the right to legal aid at the expense of the state. Life is diverse in its expressions, and
sometimes people that seem quite successful financially can become incapable of paying for a defense lawyer
(through having unreimbursed credit, dependents without support, close relatives in ill health, etc.). The
absence of a salary and extra property is not a sufficiently clear and distinct criterion.
Moreover the system for assessing the material wealth of a person being considered for legal aid at the
expense of the state
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in other countries depends upon every citizen making an open and honest declaration
of his or her wealth. In our country, with its imperfect tax legislation and generally low level of legal culture,
many of those involved in economic and financial affairs are inclined to conceal their wealth, so that a system
designed to assess the material state of a person seeking the benefit of a ‘state’ lawyer would be inefficient
from the start.
Thus a process designed to assess the level of income of people eligible for legal aid is not justified, since it
could not guarantee the necessary level of precision, while the very process of checking citizens under the
terms of the process would take so much effort, time and money that it would defeat its own financial purpose.
Legal aid at the expense of the state budget must be provided in the context of an open and clear appreciation
of existing social procedures. Managing a legal aid process solely by means of professional unions of lawyers
or state authorities will result in inefficiency. The control that society can exercise over the regulation of legal
aid and its application to assigned cases must also be enhanced.
So how can the situation be improved?
There are several ways of providing legal aid at the expense of the state. Provisionally they may be divided
into two main types:
1. ‘Judicare’ – the use of private lawyers in specific cases, with payment of their services as invoiced
afterwards;
2. The use of lawyers on a ‘staff’ basis, that is, through provision of a fixed salary for a position in an
organization providing legal aid
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.
In recent times some countries (Great Britain, Israel, South Africa, etc.) have started to limit or gradually reject
the ‘judicare’ system, seeing it as becoming very expensive and quite inefficient without allowing the state
good control over the quality of work of the lawyer concerned or his or her justification for fees charged.
Obviously, the system of legal aid current in force in Kazakhstan as envisaged by Article 71 of the CrPCRK
and Article 589 of the CAILRK is similar in nature to the aforesaid ‘judicare’ arrangement. It may not be as
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See Pieter Van Den Biggelaar. ‘The System of Legal Aid in the Netherlands’ in Access to Justice: Issues of Gratis Legal Aid in the
Countries of Central and Eastern Europe. (Budapest: The
Public Interest Law Initiative, Budapest Legal Center of Columbia University,
2002, pp. 503-505), and in the same volume David Macquoid Mason. ‘Legal Aid Counsel and Legal Aid Services in South Africa, pp.
517-518.
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Smith R. Organizational Models for Providing Legal Aid, 2002