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LEGAL AID IN KAZAKHSTAN
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6. Oversight over the proper spending of funds allotted for legal aid from the state budget.
7. Drawing up a list of self-employed lawyers to be called on to provide legal aid at state expense on a
tender basis.
The state has the right to supervise the process of budget expenditure, and to receive acknowledgement of
the fact that funds have been spent as intended, and in conformity with established procedures. It will not,
however, be permissible to intervene in the confidential relations between a lawyer and his or her client,
violate a lawyer’s privacy, or restrict a lawyer’s independence or the guarantees of his or her activities.
It is worth noting that there are now no accurate criteria for assessing the quality of legal aid. In each particular
case there are a considerable number of particularities and nuances, objective and subjective. We should bear
in mind, too, that a lawyer’s work can only be assessed with his or her client’s consent and assistance, and
only by those who know about the legal profession, i.e. lawyers, from A to Z. We believe, therefore, that while
the authorized body described above should be responsible for controlling the provision by lawyers of a
suitable volume of legal aid at the expense of the state, the taking of disciplinary measures against lawyers
should remain the exclusive prerogative of Bar Associations. Control over the provision of a suitable volume
of legal aid can be done by checking documentation, questioning those that have received legal aid, and such
other methods as do not run counter to the law and lawyers’ professional code of conduct. Financing of the
authorized body should be done from the state budget.
The body’s membership may be as follows:
1. An employee of the body of justice – the Ministry of Justice and Departments of Justice – appointed at
its discretion by the management of, the Ministry or one of its Departments. The employee’s duties will
be to control the authorized body’s activities, draft agendas for its meetings, manage administrative
and technical staff, and ensure coordination between representatives of state bodies and civil society.
2. A member of the presidium of the lawyers’ collegium, as approved by the presidium.
3. A representative of the regional government as assigned by the akim (governor or mayor).
The authorized body must hold regular meetings, the timing of which will be defined by necessity but which
must be at least once a month. The agenda of the meetings is to be defined by the Chairman on the basis of
issues coming before the body. State authorities, enterprises and institutions will have to act on resolutions
that the body makes within its competence.
This paper is not just proposing a replica of systems in other countries. We are proposing a structural
transformation of the legal profession, and changes to the character of interactions between the professional
community of lawyers and the state that are specific to the country. The option proposed does not entail a
radical restructuring of the existing order, or a major increase in budget expenditure. Rather, it envisages a
correct approach to the issue of personnel provision; preserves existing working places in this sector of the
market; and proposes steps towards a more rational organization of legal aid, and the more careful use of
state funds.
Chapter II
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Chapter II
Recommendations for the Development of a New Model for the Provision of
Free Legal Aid in Kazakhstan
Golenduhin E.
Review of Legislation on the Right to Defense
The right to defense in criminal proceedings is one of the fundamental human rights recognized throughout
the world, guaranteed by many international acts, and secured by national constitutions and criminal laws.
Being a part of the broader concept of fair trial, the right to defend oneself, either independently or by counsel,
is kind of a test of the democratic states where the rule of law is established.
Criminal procedure law is a very specific branch of jurisprudence. The position of the parties in the process
differs significantly. On the one side is the state with all its powers and institutions, including investigating
authorities, prosecution, and the court (although independent, but still representing the state). The other side
is most commonly represented by a vulnerable person, often ignorant of the material and procedural law, and
lacking legal knowledge and skills. If, on top of that, this person is under arrest, his or her ability to perform
any actions is limited even further.
Every person has the right to high-quality representation in a court of law, with the word every implying even
those who do not have the financial means to pay for counsel. International standards guarantee these people
the right to counsel appointed and paid by the state. This right has been evolving for decades – it is not
literally formulated in the Universal Declaration of Human Rights. However, the right to free legal aid derives
from Article 11 of the Declaration, which stipulates that “everyone charged with a penal offence has the right
to be presumed innocent until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defense.” In addition to that, Article 2 of the Declaration prohibits discrimination
and states that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as […] property […].”
The right to legal assistance is most completely and accurately formulated in the International Covenant on
Civil and Political Rights, ratified by Kazakhstan in November, 2005. Article 14.3(d) of the Covenant states that
everyone has the right to defense and «[...] to be informed, if he does not have legal assistance, of this right;
and to have legal assistance assigned to him, in any case where the interests of justice so require, and without
payment by him if he does not have sufficient means to pay for it.” The European Convention on Human Rights,
in Article 6.3 (c), also provides for the right to free legal assistance if the person “has not sufficient means
to pay for legal assistance” and “when the interests of justice so require.” A more detailed explanation of this
