FREE LEGAL AID IN KAZAKHSTAN
198
Thus, the funding is to be ensured directly by service providers for the relevant categories of individuals and
cases. However, currently this law is a mere formality, since neither law firms, nor the board of counsels, or
individual counsels have official sources to pay to these categories. That is, de facto, they have to provide
services free of charge, without receiving any compensation for it from the budget.
Current Rates: Trend of Change
It is the responsibility and the objective of the state to provide free legal aid to citizens in the situations
envisaged by the law. The bar is the institution, the way, and the means; it is a pool of lawyers called upon to
perform this work who expect it not to be compulsory no-fee work but rather to be paid in accordance with the
Constitution, just like any other job.
The terms of remuneration of appointed counsels are regulated by Resolution of the Government of the
Republic of Kazakhstan # 1247 of August 26, 1999, On the Rules of Payment for Legal Aid Provided by
Lawyers and Reimbursement of Expenses Related to the Defense and Representation by Means of the National
Budget. The remuneration to lawyers for participation in the trial, investigation, and inquiry is governed by this
document. Pursuant to this Resolution the fee rates are determined on the basis of
1
/
21
of the minimum wage.
The minimum wage was 9,752 tenge in 2007 (currently, in 2008, this figure has risen to equal 12,025 tenge).
Thus, the legal aid fees paid from the state budget to the appointed counsels were as follows:
In 2007
Table 1
1. One hour of participation in the court, familiarization with case files, the court record, drawing
complaints –
1
/
21
of minimum wage
464.38
2. One hour meeting with the client at detention facilities – 75% of
1
/
21
of minimum wage
348.29
3. One hour of waiting for the start of the trial, as well as for the period of adjournment of the
main trial – 50% of
1
/
21
of minimum wage
232.19
In 2008
Table 2
1. One hour of participation in the court, familiarization with case files, the court record, drawing
complaints –
1
/
21
of minimum wage
572.62
2. One hour meeting with the client at detention facilities – 75% of
1
/
21
of minimum wage
429.47
3. One hour of waiting for the start of the trial, as well as for the period of adjournment of the
main trial – 50% of
1
/
21
of minimum wage
286.31
Chapter II
199
According to the official document regulating the compensation of the appointed counsels, the travel costs
associated with the lawyer’s movements pursuant to the rulings and judgments of the court or the relevant
body to another place are to be paid under the norms and in the manner provided for the employees of public
institutions that are maintained by the state budget of the Republic of Kazakhstan. The costs related to the
visits to institutions, formally located in the city, are not paid although in fact the route may take quite a long
time.
Thus, the compensation of appointed counsels is time-based payment calculated based on the number of
hours spent by counsel on the case. As can be seen from the table, this payment is not high enough to be of
interest for a high-level professional. In this case, the time depends on a lawyer’s complicated schedule, which
depends on the number of cases. The lawyer has to spend a lot of time moving between the court, detention
facilities, temporary holding facilities, the site of investigative experiment – being constantly in motion in an
effort to collect as many working hours as possible. All of these movements are in fact, part of the working
time but unfortunately are not paid.
The most common model of free legal aid – appointed counsels – is currently operating in Kazakhstan,
particularly, in the criminal process. The
ex officio system is applied, where a lawyer is appointed to a particular
case and services are paid depending on the amount of time spent.
Disadvantages of the Applicable Model
This model prevails in the countries of Central and Eastern Europe. The appointed counsel system is most
convenient for law enforcement agencies but it fails to ensure the proper protection of the client’s rights and
interests. Its main drawbacks are as follows:
•
Whereas the counsels are interested in obtaining cases, their dependence on the courts, the police,
and the prosecutors in this matter often makes them maneuver between the interests of the client and
the desire to maintain good relations with the judges, policemen or prosecutors that appointed them;
•
Where the counsels are not interested in the case and see it as a burden, they may utterly neglect
their duties, leaving the client, in actual fact, without any protection, or default in appearance, thus
dragging out the trial;
•
The defendants, conscious of the vicious practice of appointing lawyers, often tend to mistrust them
and feel less inclined to rely on them. This can even further complicate the provision of high-quality
defense;
•
Due to the complexity of payment calculations, the payment for the defender’s work is usually delayed,
which is also not conducive to quality provision of services;
•
The counsels are interested in dragging out the trial as their remuneration depends on the number of
hours spent on being involved in litigation, investigation, or inquiry activities;
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