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foreign countries, including some former Soviet Union republics, suggests that it is time for Kazakhstan to set
up a single system of state-subsidized legal aid.
Based on the foregoing, this study examines the issues that need to be considered, in my opinion, when drafting
the Concept of Guaranteed Subsidized Legal Aid as well as the
program for its implementation, namely:
•
the legal framework regulating the provision of free legal aid;
•
the entities providing legal aid services;
•
international standards on provision of free legal aid;
•
basic foreign models of subsidized legal aid; and
•
proposals and recommendations for development of the national model of subsidized legal aid, as
well as the reformation of the existing system of legal aid and legal services.
This study is based on the information taken from published sources (such as international acts, foreign laws,
reviews, specialized materials, monographs, theses, analytical reports, etc.) of judicial practice, including the
ECHR; unpublished materials of conferences, round tables, seminars, trainings, Internet resources; interviews
of counsels and lawyers providing legal aid, officials of the services providing subsidized legal aid in Lithuania,
Moldova, Bulgaria, Ukraine, Georgia, and Russia, as well as the author’s personal experience as a representative
for legal services and a legal expert.
The study takes into account major positive trends, as well as the negative factors in the provision of subsidized
legal aid in different countries, which, in my view, should be considered in establishing a similar system in
Kazakhstan, to help us avoid some mistakes and omissions.
The author expresses her deep appreciation to the Soros Foundation Kazakhstan for providing financial and
organizational assistance in conducting this study.
1. Legal and Institutional Challenges of Ensuring the Right to Free Legal
Aid in Kazakhstan
Human rights and freedoms are recognized and guaranteed by Article 12.1 of the Constitution of the Republic
of Kazakhstan. As a follow-on to this idea, Article 14 of the Constitution proclaims the principle of equality
of citizens before law and the courts, and one of the prerequisites of implementation of this principle is the
right to competent legal aid, particularly, to free legal aid in the cases envisaged by the law (Article 13.3 of
the Constitution). The right to competent legal aid is, in turn, an integral element of the right to justice that is
stipulated in many international instruments providing for human rights and guarantees thereof
24
.
These provisions, taken together, bind the state to create conditions that guarantee the right to access to legal
aid, irrespective of the individuals’ financial capacity. These guarantees require the following:
24
For more details please refer to Section 3 hereof.
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LEGAL AID IN KAZAKHSTAN
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1. improved legal regulation for providing state-subsidized legal aid, namely: the development of the
Concept of State-Guaranteed Legal Aid, followed by the adoption of a special law on state-guaranteed
subsidized legal aid and other regulations determining the procedure for providing such assistance,
payment methodology, etc.; introduction of relevant changes and amendments to the Law on Legal
Practice, Code of Criminal Procedure, and some other legal acts;
2. the establishment
of the institutional framework, i.e. a system for state-subsidized legal aid; and
3. financial, logistics, organizational, and human resources.
The problems of the legal regulation of the right to free legal aid require immediate resolution, as the existing
laws governing this right are not perfect as evidenced by the analysis presented below.
Some aspects related to the grounds for, and procedures of granting free legal aid are regulated by the Law
on Legal Practice, the Code of Criminal Procedure, the Code of Civil Procedure, and the Code on Administrative
Offences. The bar is entrusted with the provision of this type of legal aid. The right to determine the need
for free legal aid is granted to the bodies who conduct case proceedings (criminal, civil, or administrative) at
their subjective discretion. At the same time, the law does not establish any criteria for these bodies to rely on.
However, the current legislation providing for free legal aid is imperfect and cannot guarantee the provision
of aid to those who need it but have no financial means to pay for a lawyer’s services. The free legal aid, as per
the applicable legislation, may be provided in the following cases.
In
criminal proceedings, pursuant to Parts 2 and 3 of Article 172 of the Code of Criminal Procedure, the
body conducting criminal process, where justified, may release the suspect, the accused, or the victim, fully
or partially, from payment for legal aid. In this case, the lawyer is paid from the state budget. In the cases
provided for by Part 3 Article 71 and Part 2, Article 80 of the Code of Criminal Procedure, when a counsel has
been involved in the inquest, preliminary investigation, or the trial, having being appointed rather than being
under a contract with the client, the labor remuneration costs can be put on the expense account of the state.
These provisions are concretized by the following article of the Code of Criminal Procedure whose Article 72,
Parts 5 and 6, state that the remuneration of the lawyer defending the suspect, the accused, the defendant,
the convicted, the acquitted, or a representative of the victim is made by the state in the three following cases:
•
In the circumstances provided for by Part 1 of Article 71 of the Code of Criminal Procedure, if the
defender is not invited by the defendant himself or herself, or his or her lawful representative, or by
any other persons on his or her behalf, the official body conducting the criminal proceedings should
ensure the participation of the defense counsel at the appropriate stage of the process, whereof it
passes the ruling that is binding on the bar (Part 3 Article 71, Part 6 Article 72 of the Code of Criminal
Procedure).
•
Where justified, the body conducting the criminal proceedings has the right to exempt, fully or
partially, the suspect, the accused, or the defendant, the convict or the acquitted person from paying
for legal aid (Part 5 Article 72, Code of Criminal Procedure); and
