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Free legal aid can also be provided where there is a need to draft written legal documents for the citizens
on such issues as recovery of alimony, calculation of pensions and allowances, application for the status of a
refugee or an oralman, or cases of minors deprived of parental care. This type of legal services should be also
rendered by attorneys (Article 6.1.3 of the Law on Legal Practice). In this case the legal aid should be provided
once the person approaches the lawyer. Where the lawyer is unable to provide legal aid immediately upon
the person’s application, the latter should be notified of the time of the appointment within a maximum of
three days since the date of the application. A single legal consultation should not exceed one hour. Where
necessary this time frame may be prolonged by the superior official of the relevant law agency. The person is
entitled to benefit from free legal aid on the same issue only once. The legal services in this situation are paid
from the state budget, against the presentation of the certificate of completion and the application of the bar
association to which the lawyer is a member.
However, where the citizens need legal aid on any other issues that may arise as a result of citizens’ applications
to other public or non-public agencies, the law does not envisage free provision of such services (for example,
in the form of information about the rights and methods of implementation, consultations, advice on the
issues not related
to the court applications, etc.).
Of particular attention is the payment procedure and amount of remuneration of the appointed counsels. This
issue is regulated by the Rules of Payment for Legal Aid Rendered by Lawyers and Compensation of the Costs
Associated with the Protection, from the State Budget Funds, adopted by Governmental Resolution # 1247
27
of August 26, 1999.
The legal aid costs may be put on the account of the state budget on the basis of a ruling issued by the
body conducting the legal process, the judge, or the body (the official) authorized to consider administrative
offence cases as well as the court ruling on civil cases (hereinafter “the relevant body”) who perform judicial
proceedings with regard to the case (please see Annex I for the rates for legal aid).
Therefore, the compensation of the appointed counsels’ services for legal aid and representation from the
state budget is carried out
post factum, i.e. after the resolution (ruling) is passed by the body conducting the
case.
28
The amount of payment and compensation for legal aid is insignificant compared to the fees applicable for the
cases where the lawyers participate under a contract with the client. Consequently, the quality of the legal aid
provided on such cases often leaves much to be desired, due to its ineffectiveness.
Proceeding from the above, the law neither determines appointment and remuneration procedures, nor
provides for quality assurance and control of subsidized legal aid, as well as other essential components of
free legal aid.
The listed drawbacks coupled with the lack of financial motivation owing to the low pay for the work on this
type of case, on the one hand, and the lawyers’ desire to have good-paying clients, on the other hand, serve
27
Collection of Acts of the President and the Government of the Republic of Kazakhstan, 1999, # 42. Article 384; 2001. # 48. Article 571-572.2005.
# 36. Article. 503.
28
At the stage of preliminary investigation, upon completion of the assignment; for the cases where an assignment lasts for more than one month,
on a monthly basis; at the court on the criminal cases, simultaneously with the passing the verdict or a procedural decision on further investigation
or termination of the case; or the cases where an assignment lasts for more than one month, the court ruling is passed every month; on civil and
administrative cases, simultaneously with the ruling (resolution).
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LEGAL AID IN KAZAKHSTAN
218
as a fertile ground for emergence of some negative phenomena such as tandems between some judges,
investigators, inquirers and their lawyers they “keep in their pockets.” These “alliances” result in the lawyers
merging with the investigating bodies and judicial bodies who are interested in appointing a “convenient”
lawyer to a defendant, one who will not cause unwanted problems or show excessive activity (will not file
“redundant” applications, disclaimers, complaints, etc.).
This situation has been precisely characterized by Valerie Wattenberg who analyzed the system of legal aid
delivery in post soviet countries: “[…] by the time the Soviet Union collapsed, attorneys’ reputations had
descended to a comparable nadir. Long perceived as brokers of expedited justice “proceedings” arranged in
advance behind closed doors, they came to be seen as unprincipled go-betweens for corrupt clients. This
image deteriorated further when the market freed up private practice at the end of the Soviet period: wealthy
lawyers were regarded as successful and savvy, but inherently suspect; whereas the less affluent were
presumed talentless. […] today the attorneys are less likely to want to inconvenience law-enforcement or
judges from whom they receive appointments, and who must sign off on payment vouchers. […] Exacerbating
the restrictions on counsel’s actions, lawyers called upon to provide mandatory legal aid under the panel
appointment,
ex officio, assignment system, are still paid in accordance with a scheme whose priorities suited
the Soviet state…”
29
.
In addition to that, it should be noted that the current system of appointing lawyers, contrary to their will,
to provide services under the rates not compliant with the real efforts, also comes into conflict with Article
24.1 of the Constitution of the Republic of Kazakhstan stipulating the right to labor and a ban on forced labor.
Thus, in view of the above one can acknowledge that the current free legal aid procedures are imperfect,
due to the following:
•
the lack of a concept of, and program for, the fundamentals of public policy for the provision of
subsidized legal aid and legal education among the population;
•
there is no special law regulating the organization of, and procedure for, granting state-subsidized
legal aid;
•
the lack of the structure to manage (administer) such assistance and implementation of the programs
in this area;
•
the lack of clear grounds and terms of the legal aid provision;
•
there is limited access to legal aid: the legislation (the Law on Legal Practice, Code of Criminal
Procedure, Code on Administrative Offences, etc.) only establishes a limited number of persons
eligible for free legal aid;
•
the lack of legal regulation of legal aid granting procedures;
•
free legal aid is provided for criminal cases depending on the subjective judgments of the body
conducting an inquiry, the investigator, or the court;
29
Valerie Wattenberg’s, Making Way for Justice: Breaking with Tradition in the Former Soviet Bloc // Justice Initiatives: Legal Aid
Reform and Access to
Justice, 2004. February, pp. 11–14
