Chapter III
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Chapter III
Subsidized Competent Legal Aid in Kazakhstan: Legal Regulation,
Organization, and Implementation
Suleimenova G.
Introduction
The state declares the right to free legal aid in its Constitution, for the cases specifically envisaged by the
law, however, at the same time, it provides neither proper guarantees for the financial insurance of such
a right, nor adequate assurance of the quality of the legal aid. Now after more than fifteen years since the
adoption of the Constitution no clear streamlined legal mechanism has been introduced to implement this
constitutional provision. The analysis of the Kazakh legislation in the field of competent legal aid and the
practice of exercising the mentioned right prompts the conclusion that no significant changes in terms of
legal aid provision have been made over the years of judicial and legal reforms in the country. Regretfully, no
concept and public policy program to enforce the right to state-guaranteed legal aid have been developed so
far. 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 current system of providing free legal aid differs little from the Soviet model, which is characterized by the
dominance of public interest over private interest, and therefore is assessed, given its quality and organization,
as ineffective, outdated, and inconsistent with the standards established by a number of international acts.
First of all, this system breaks the principle of equal access to justice, whose essential element is everyone’s
right to competent legal aid. The law regulates certain provisions regarding subsidized legal aid but there is
no coherent system that would provide real access to, organization and delivery of legal aid.
Obviously, subsidized legal aid requires substantial funding from the state budget and setting up an effective
system, i.e. the institutional infrastructure to secure the management of subsidized legal aid services, as well
as its control and quality. In the absence of such a system the declared constitutional right to legal aid and
its provision in the cases envisaged by the law will remain, and still remains, a declared provision for many
categories of citizens who need it. This, in turn, promotes the growth of legal nihilism and public distrust of
the state and its agencies.
However, the state has already taken some steps towards improving this situation. Thus, the 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 a strategic component, 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
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provided for by the applicable law. To implement these objectives, the government plans to develop some
regulations in 2009 and 2010 ensuring the provision of free legal aid to socially unprotected categories of
the population.
Kazakhstan’s legal policy concept for the period from 2010 to 2020, envisages the need for further improvement
of the specialized institutions dealing with protection of human rights and freedoms, stating the following:
«The legal aid system itself requires improvement. First of all, it is critical to enhance the legal aid system for
low-income citizens. The problem of unbalanced provision of legal services should be consistently addressed
both in the urban and rural areas. The system of payment to the lawyers providing free legal services also
calls for correction – it should be consolidated and made transparent, in order to allow more efficient use of
budgetary funds” (Article 3.3 of the Decree of the President of the Republic of Kazakhstan On the Concept of
Legal Policy of the Republic of Kazakhstan for the Period from 2010 to 2020
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). Thus, the concept links the
major trends in legal aid provision with the accessibility of the services for low-income groups.
It is also important to point out that the legal aid system should be enhanced, or rather brought into compliance
with, above all, the international standards in this field. Article 4.3 of the Constitution of Kazakhstan states that
«international treaties ratified by the Republic of Kazakhstan shall have priority over its laws and be directly
implemented except in cases when the application of an international treaty shall require the promulgation
of a law.” italicized by GS). In line with this provision is Article 20.1 of Law # 54-III of May 30, 2005, On
International Treaties of the Republic of Kazakhstan: “Each applicable international treaty of the Republic of
Kazakhstan shall be implemented in a compulsory and faithful manner by the Republic of Kazakhstan.” Thus,
these provisions bind Kazakhstan to adhere to the generally recognized international rules and principles and
implement them into national legislation, which equally applies to the international instruments covering the
right to competent legal aid, including free legal aid.
However, the cases provided for in the law as eligible for the provision of free legal aid, as well as the
organization of the aid, do meet international standards or current social needs associated with various
complicated types of legal relations emerging and evolving in the context of market economy and their legal
regulation. Kazakhstan lacks a single system that would ensure the right to free legal assistance for the low-
income citizens and other socially vulnerable categories. Kazakhstan’s legislation provides for free legal aid
in criminal and administrative proceedings involving a defense counsel appointed by the bodies in charge
of legal proceedings. In this case, the counsel’s work is paid from the state budget at the rates approved by
the Government of Kazakhstan. Free legal aid may be provided also in civil proceedings, but only for certain
categories of low-income people and for a very limited range of issues. Meanwhile, the provision of legal aid
is not regulated for other issues not related to judicial recourse, as well as provision of legal information and
legal advice.
In this context it is critical to consolidate and systemically develop the principles and fundamentals of legal
aid, which calls for reforming the current system for providing and paying for legal aid. This includes creation
of legal, resource and institutional facilities for implementation of the right to free legal aid guaranteed by
the Constitution to the poor and vulnerable groups. These principles should be reflected in the Concept of
Guaranteed Subsidized Legal Aid. The available successful application of free legal aid systems in a number of
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Decree of the President of the Republic of Kazakhstan # 858 of August 24, 2009, On the Concept of Legal Policy of the Republic of Kazakhstan for
the Period from 2010 to 2020 // Kazakhstanskaya Pravda, August 27, 2009.
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