FREE 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
14
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
15
.
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
14
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.
15
Smith R. Organizational Models for Providing Legal Aid, 2002
Chapter I
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expensive as in developed countries
16
, but anyway it seems to be ineffective, given that it is impossible to
make an adequate and authentic reckoning of the time actually spent on a case by a lawyer.
In our opinion, we have to reject this approach and consider the issue of defining fixed salaries for lawyers
working on assigned legal aid cases. We will probably have to distinguish between lawyers who agree to work
on legal aid assignments for a regular salary and lawyers who want to stay in private practice. In this way we
will optimize the management of the process of providing legal aid at state expense. On the one hand such an
arrangement will allow for a more precise reckoning of the work load of each lawyer, while on the other it will
simplify the process and make it easier to say precisely how much is to be paid for each assignment. Dividing
lawyers into these two types will be quite possible under current legal conditions. It may well be that many
Bar Association members will agree to change the unstable and uneasy income of a private law practice for a
permanent well paid job as a state-funded lawyer. Of course the salary of such lawyers must be set at a decent
level, not less than the salary of a state prosecutor, as a clear reflection of the parties’ equal standing in legal
affairs and of the state’s equitable attitude towards all those participating in legal proceedings.
In addition there should be social guarantees for such lawyers, since professional lawyers may be classified as
an unprotected group for employment purposes, with no sick leave, annual leave, social protection guarantee,
or right to receive compensation for injury or death sustained in the course of professional duty. If a system
is introduced in which lawyers are appointed to work on behalf of the state, they should be provided with
employment benefits that include medical care, life and health insurance, and housing. If the system for
providing legal aid at the expense of the state budget is reformed, the state should provide Bar Associations
with support, i.e. create favorable conditions for lawyers’ work such as providing office premises and equipment,
and meeting the costs of transport, stationery and municipal services. These expenses are currently met by the
Bar Associations themselves.
We shall probably have to offer lawyers a choice between the different types of activity, and leave them the
possibility of moving from one type to the other and back again upon agreement with the body in charge of
legal aid provision
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.
The procedure for hiring state-funded legal aid lawyers can be more or less as follows. Lawyers who want to
be paid by the state for working on cases will make an application to the collegium, and with the agreement
of the management board of the presidium will be included in a list of assigned lawyers. Then the body in
charge of legal aid provision will select the required number of such lawyers on a tender basis, and allocate
cases to them. In the event of their being a shortage of lawyers willing to occupy vacant positions in the list of
legal aid lawyers, the collegium will forward jobs to lawyers who have newly entered the legal community. If
the number of lawyers wanting to work on legal aid cases for a fixed salary is more than the number required,
then the surplus will be enrolled in a reserve list and be given vacant positions as they occur, staying as self-
employed lawyers in the meantime.
General management of state-appointed lawyers can be done by the heads of legal consultations, who can if
necessary arrange for a deputy to take charge of the work. However the question of which lawyer is assigned
to take on which case must be dealt with on a queue basis, and of course in terms of a reasonable workload
for the lawyer concerned, irrespective of the desires of the prosecution or of the lawyer himself. At the same
16
In the Netherlands, for instance a legal aid lawyer receives 83 euros per hour of work. See Peter Van den Biggelaar, op. cit., p. 505.
17
For more on the responsibilities of this body, see below.
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