Chapter III
227
Lawyers’ compensation:
•
lawyers that are permanently employed by a territorial office of the National Council will receive fixed
monthly salaries irrespective
of how much work has been done; and
•
lawyers who provide legal aid under a contract will be paid for each criminal case separately. The
amount of compensation should be determined based on the following factors: time spent on a case,
its complexity, and other criteria to be set forth by special regulations.
2.4. Criteria for Identifying the Need for Subsidized Legal Aid.
For a legal aid system to be successful clear eligibility criteria should be determined. These should include:
•
a financial factor (a person requesting free legal aid must prove that he or she cannot afford to pay
for legal services); and
•
the interests of justice (legal and factual complexity of the case; incapacity of an accused person to
defend himself or herself).
For this reason, there should be two types of secondary legal aid:
1. legal aid provided irrespective of the financial capacity of the person; and
2. legal aid provided depending on his or her financial capacity.
In the first instance, the following persons should be eligible for free legal aid:
•
those detained on suspicion of having committed a crime or administrative violation;
•
those eligible for free legal aid in accordance with the Code of Criminal Procedure, the Code of Civil
Procedure, or the Code on Administrative Offences;
•
the disabled (groups 1 and 2);
•
veterans
of the Great Patriotic War;
•
unemployed pensioners who receive old-age pensions;
•
those detained in mental health in-patient clinics by court order to apply compulsory medical
measures or otherwise involuntarily;
•
those with severe mental illness when their involuntary hospitalization and treatment are being
considered in accordance with Law of the Republic of Kazakhstan # 96-1 dated April 16, 1997, On
Mental Health Services and Treatment and Guarantees of the Rights of Citizens Who Receive Mental
Health Services, and they need legal aid to protect
their rights and interests;
FREE LEGAL AID IN KAZAKHSTAN
228
•
foreign nationals who have become victims of violations of human rights and have applied for asylum;
•
disabled children and children in psycho-neurological institutions and special education schools and
boarding schools); and
•
other persons pertaining to socially vulnerable groups.
In the second instance, the following persons should be eligible for free legal aid:
•
those who permanently reside in Kazakhstan and who are eligible for the aid in accordance with
international treaties of Kazakhstan, the property and annual income of which do not exceed the
limits set by the Government of Kazakhstan as qualifying for the provision of legal aid in accordance
with the laws governing guaranteed subsidized legal aid;
•
those entitled to targeted social assistance in accordance with Article 2 of Law of the Republic of
Kazakhstan # 246-II dated July 17, 2001, On State Targeted Social Assistance (refugees, foreign
nationals and stateless persons who reside permanently in Kazakhstan and whose per capita income
does not exceed the poverty line);
•
those entitled to a social allowance in accordance with Law of the Republic of Kazakhstan # 126-I
dated June 16, 1997, On State Social Disability, Survivors, and Old-Age Allowances in the Republic of
Kazakhstan; and
•
senior citizens and the disabled who live permanently in state rest homes.
The experience of foreign systems of subsidized legal aid suggests determining three main methods for
carrying out the means test.
The first method sets a means test threshold, which divides all citizens into two groups: (1) citizens eligible
for legal aid that is fully paid by the national budget; and (2) citizens not eligible for any state support. This
method is used by Italy, the U.S., South Africa, Ireland, Slovakia, and some other countries. In some countries,
the means test threshold is a percentage or portion of the minimum subsistence level (in the U.S., for example,
this threshold is 125% of the poverty level for households of a certain size)
35
.
The second method envisages the provision of subsidized aid to not only the poorest groups, but also to citizens
whose living standards are close to average. In the latter case, the state pays for a portion of legal services
and the remainder is paid by the recipient. The amount paid by the state depends on the citizen’s income: the
higher the income, the lower the state assistance. This method is used by many European countries, including
Germany, Sweden, the Netherlands, the U.K., Belgium, and France
36
.
The third method assesses the financial status of a person requesting subsidized aid. In each case, in addition to
the assessment of income and property, his or her expenses are assessed and the financial status is compared
with the anticipated cost of the requested legal services
37
.
35
International Experience in Providing Free Legal Aid. Moscow:
Public Interest Law Institute, p. 8.
36
Ibid, p. 8.
37
Ibid, p. 10.