FREE
LEGAL AID IN KAZAKHSTAN
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right is given by international monitoring bodies in a number of cases which they have dealt with over a long
period of time: these include the UN Human Rights Committee decisions (the International Covenant) and the
verdicts of the European Court of Human Rights in Strasbourg (the European Convention).
In addition to that, there is an important aspect of the right to defense – the state’s obligations. One of the
features of this right is that it implies not only creation of conditions for its being implemented but also
active dissemination of the information about the availability of the right for everyone. Article 71 of the Code
of Criminal Procedure of the Republic of Kazakhstan provides for the mandatory participation of a defense
counsel when it is requested by the suspect, accused, or the defendant. However, unfortunately, the criminal
procedure law does not set a clear requirement for the investigating authorities and the court to inform people
who have found themselves in the criminal justice system about their right to legal counsel paid for by the
state.
A general rule of international standards is that the access to free legal aid envisages not only the right of
the persons who need such assistance, but also the obligation of the state to provide this assistance. Raising
awareness about the right to free legal aid plays also a vital role in this.
As part of this, it is necessary that the state itself organize a free legal aid system – the international bodies
leave it to the state to decide upon the structure and procedures of providing such assistance. The key is to
guarantee the right to benefit from free legal assistance. The UN Basic Principles on the Role of Lawyers,
adopted by the Eighth UN Congress on Crime Prevention and Treatment of Offenders in September, 1990,
set forth the following: «Governments shall ensure the provision of sufficient funding and other resources
for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of
lawyers shall cooperate in the organization and provision of services, facilities and other resources.”
With regard to the choice of free legal aid system, an international law doctrine such as the
margin of
appreciation must be applied allowing the states to independently determine what their state-funded system
of providing competent legal assistance should be like.
On the whole, there is a variety of models for the provision of legal aid funded from the state budget.
Models for the Provision of Free Legal Aid
1. Staff lawyers: legal
aid is administered by a special independent body composed of representatives of
various professions and institutions (the government, the bar, law-makers, academic community, etc.) that
can be called the Legal Aid Bureau or Commission. Services are paid for according to the duration of the
time spent.
2. Public defender’s office: the lawyers work full time only on cases paid for by the government, and receive
a monthly salary.
3. Contracted services model: a special body, such as the Legal Aid Bureau, signs a contract with a law
firm or a lawyer for the provision of legal aid for a certain number of cases or for all cases within given
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jurisdiction. Payment may be made for each case individually or for the total number of cases. Lawyers
acquire the contract through a contest.
The mechanism of the contracted services model is as follows: the state concludes an agreement with the
National
Bar Association, and the Association then distributes the funds received from the state budget.
4. Ex officio: the lawyers are appointed by the state. The prosecutor’s office or the court hires an attorney
for the party in need of defense and pays for it through various payment schemes: per case, per hour,
according to estimates, etc. Here the attorney is appointed from the list of the members of the bar willing
to
take the case, or out of all its members, as legal aid is the attorney’s responsibility.
5. Legal Clinic: students and young graduates of universities provide free legal assistance under the
guidance of senior colleagues.
6. Insurance scheme: the insured person receives free legal aid if an insured event, i.e., the conditions under
which the person is lawfully entitled to legal assistance, occurs. The attorneys’ services are paid from the
legal insurance fund according to average rates for lawyers activities, as per the agreement.
7. Judicare system: works as an analogy of the Medicare medical insurance system: the state pays for the
services of an attorney selected by the customer, based on an average fee for holding a brief, or on the
average hourly rate. The lawyer independently decides whether to participate or not in the case.
Although the fees payable through judicare are significantly lower than normal fees for private practice, the
attorneys may be interested in providing legal assistance for other reasons. In some countries attorneys make
out an invoice for their hourly work under a legal aid program at the law firm’s usual rate to the law firm
itself which receives tax benefits for participating in legal aid programs. Traditionally the judicare schemes
are open in the sense that there are no restrictions on the number of cases that the supplier receives from
customers. The body regulating the legal aid system provides private attorneys, who meet the relevant criteria
(education, experience, number of years of practice in a particular area of law, etc.) with special accreditation
cards (certificates). These certificates allow them to provide services within subsidized legal aid programs and
receive compensation from public funds.
Payments from the state budget funds are made either for specific legal services (for example, a fixed fee for
a divorce by mutual consent), or on an hourly basis, or as the maximum amount of fee for a service regardless
of its duration.
8. Pro bono: the work of a lawyer is in no way compensated. Typically, this assistance is organized by the law
offices themselves without involvement of the state. In some cases, the regular fulfillment of a certain
amount of free legal aid is a prerequisite for membership in the bar association.
9. Duty counsel: traditionally duty counsels are provided to clients on the day of their first appearance in the
court. The duty counsel’s functions are complemented with new tasks, including vigorous actions in the
interest of their clients entitled to free legal aid from the very beginning of the proceedings, rather than
from the court hearings. The cases addressed within the duty counsel model must not be too complicated,
