FREE LEGAL AID IN KAZAKHSTAN
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time lawyers assigned legal aid cases will have the option of working in consultation with self-employed
lawyers accredited by the body in charge of legal aid provision, lawyers that will take fixed remuneration for
the work done.
Such consultations must take into account possible conflicts of interest arising from the fact that the cases
of several accused persons whose interests contradict one another may have to be passed to the lawyers of
one and the same consultative group. We may have to avoid such situations by bringing in defense lawyers
from other consultative groups, or else self-employed lawyers from among those accredited by the legal aid
authority along the lines envisaged by the practice of ‘judicare’.
One serious issue is the provision of legal aid in civil cases. Whereas it is axiomatic that the state is obliged
to provide defense services in criminal cases, and probably also to cover costs relating to investigation, court
procedure and sentencing, the provision of qualified legal services in civil cases cannot be provided to all
those needing it to the same degree, since the state impinges on fundamental human rights in such cases to
a far less significant extent, and a somewhat different kind of social welfare is under consideration. We should
probably envisage a preliminary consultation, gratis, among all those concerned, at which the main procedural
documents are brought together so as to clarify who is eligible for legal aid for certain categories of people.
These could include indigent pensioners, people with disabilities, single mothers, ex-servicemen, decorated
soldiers, and other categories of social security beneficiary – a full list could be subject to debate. We should
also probably envisage the provision of legal aid in cases relating to reimbursement for harm done or illegal
actions taken by state bodies, enterprises, institutions and organizations, as well as in some other categories
– again, a full list could be the subject of debate.
Given that legal aid is inaccessible in places of confinement, we propose that legal consultations be provided
to convicted persons at state expense. On the one hand this will help humanize legal procedures, while on the
other it will guarantee the rights of citizens to appropriate legal aid.
The financing of the state system for providing legal aid outlined above should be provided from the state
budget through the Ministry of Justice directly to Bar Associations. Control over the proper use of legal aid
funds shall be the responsibility of authorized state authorities. A single state provider should be responsible
for the centralized distribution of funds to meet the relevant needs of citizens, and existing arrangements
for the payment of lawyers under the aegis of several different law enforcement agencies, which are very
complicated, ineffective and degrading to lawyers, should be eliminated.
The procedure whereby statements attesting to the provision of legal aid are signed by investigators and
judges should be done away with. Bar Associations should make such payments under the control of relevant
fiscal bodies.
A compromise should be reached on how NGOs participate in providing the population with legal aid. NGOs
that specialize in giving legal aid can provide primary consultations to interested persons without restriction,
and help them draft the necessary legal documents. The desire of civil society representatives to protect the
rights of indigent people and other socially vulnerable groups is meritorious and should be encouraged. But
the protection of people over criminal and administrative matters, and the representation of their rights and
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legitimate interests in court, should lie exclusively within the competence of lawyers, since they constitute an
already-existing special legal profession, one that has special standards and a professional code of conduct,
and is under the control of managing bodies of Bar Associations and authorized state bodies. This practice is
widely observed in most developed democratic countries, and has proved its effectiveness. In Great Britain, for
example, to become a public prosecutor, senior lawyer or judge, a lawyer should belong to one of four legal
corporations, the so-called Inns, and should be get barrister status
18
. In the United States, in most states a
person must pass a special examination – the Bar exam – to become a lawyer, and belong to the corresponding
professional association
19
. Similar procedures exist in many other European countries
20
.
2.2. Overall management of the process of providing legal aid at state expense
Control over the organization and quality of legal aid provided at state expense should probably be referred to
the competence of collegiums at the level of the region or city of republican status, and should bring together
all the concerned departments and organizations.
The main responsibility of the controlling body will be to find a reasonable compromise among the interests of
state authorities, lawyers and civil society in order to provide the most qualitative and accessible legal aid for
everyone that needs it
21
. The body shall be vested with general powers for managing the process of organizing
legal aid in the territory of the relevant administrative and territorial unit, and shall solve personnel issues
without affecting the field of activity of lawyers’ collegiums or authorized state authorities.
The body shall include representatives of regional judicial authorities, Bar Associations and local Governments
(assembly or maslikhat deputies).
The body should have the following responsibilities:
1. The enrolment as legal aid lawyers of lawyers assigned from among the members of the lawyers’
collegiums, and the exclusion from enrolment of lawyers identified as unsuitable by disciplinary
bodies of the lawyers’ collegiums.
2. Determination of the number and of lawyers assigned to be legal aid lawyers.
3. Resolution of disputes arising between lawyers assigned to be legal aid lawyers and state bodies.
4. The making of proposals to the authorities of the Justice Department for their obligatory consideration
of changes the order and form of payment to lawyers assigned to be legal aid lawyers.
5. Within the limits of its competence, giving executive orders to the heads of legal consultations on
issues relating to legal aid provided at state expense.
18
Cheltsov-Bebutov M. Criminal Procedural Curiculum. 1995
19
The Bar in the USA. Bernam W. Legal System in the USA.2006
20
The Bar in France. accessible at www.sherbakova.ru
21
It has to be noted that in most developed countries such bodies function well, so that the problem of legal aid is dealt with in a satisfactory manner.
In the Netherlands and South Africa the body is called the Legal Aid Council; in England it is called the Legal Services Commission; and in Israel it is
called the Public Defenders Bureau. While the organizational arrangements, competences and staff of such structures vary from country to country,
they all share the same general feature of independently solving the issues of legal aid provision. See Roger Smith, ‘Models of Organizing the System
of Legal Aid Provision: Comparative Experience’ in Access to Justice: Issues of Gratis Legal Aid in the Countries of Central and Eastern Europe. (Buda-
pest: The Public Interest Law Initiative, Budapest Legal Center of Columbia University, 2002, p. 458).
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