State-guaranteed legal aid: who is entitled to it under the law of the Republic of Kazakhstan

This question most often arises when a summons, an investigator's order or a court claim has already appeared, but there are no funds to pay for a defence lawyer or representative. A person wants to understand whether they fall into the category that the state is obliged to provide with a lawyer, and what needs to be done for that. Separately, this question arises for entrepreneurs facing an inspection or a dispute where the participation of a lawyer is mandatory.

From this article you will learn which law state-guaranteed legal aid derives from, who is included in the circle of recipients, how consultation, defence and representation differ, when a defence lawyer in a criminal case is appointed free of charge, and where the boundary lies in civil and administrative proceedings. We will also look separately at the procedure for applying, the list of supporting information, the grounds for refusal and what business can count on.

What state-guaranteed legal aid is and which laws it derives from

State-guaranteed legal aid is a procedure established by the legislation of the Republic of Kazakhstan under which the state is obliged to provide certain categories of persons with qualified legal support. This is a public duty of the state: the aid is provided by lawyers and legal consultants, and the citizen receives it not at their own expense.

The concept is broader than consultation: it covers defence of interests in court, drafting of procedural documents and representation in certain categories of cases. The basis here is the law, not a contract with the client. The regulation rests on the constitutional provision on the right to qualified legal aid and the Law of the Republic of Kazakhstan on Advocacy and Legal Aid (2018); there is no separate law on state-guaranteed legal aid.

Who in Kazakhstan receives state-guaranteed legal aid: the circle of persons under the law

State-guaranteed legal assistance is the work of a lawyer or legal consultant paid from the budget in the interests of a specific person. It is provided to certain categories of citizens and in certain cases, so the authorised body decides whether the applicant falls within the list under the law and whether the case is one of those for which assistance is provided.

The legislator's logic is social: the budget bears the costs where a person is deprived of the ability to defend themselves or is defending more than a private interest. The right is determined not by property as such, but by a combination of the person's status and the category of the case. For example, in cases concerning the recovery of alimony or compensation for harm caused by injury or the death of a breadwinner, a representative at the state's expense defends the weaker party. The full list of categories of persons and cases is set out in the law.

• persons with disabilities of the first and second groups
• veterans of the Great Patriotic War and of combat operations on the territory of other states
• persons who have suffered from human trafficking
• children who are orphans and children left without parental care
• citizens whose cases concern the recovery of alimony or compensation for harm to health
• low-income citizens receiving targeted social assistance

The list of categories and the procedure for confirming them are set by the Law of the Republic of Kazakhstan on Advocacy and Legal Assistance.

Forms of state-guaranteed legal assistance: consultation, defence, representation

The Law of the Republic of Kazakhstan on Advocacy and Legal Assistance (2018) sets out the forms of state-guaranteed legal assistance. These are actions that differ in scope: who does what in a case depends on the correct form.

The first tier is consultation. An oral consultation explains the legal rule and the procedure without procedural documents; a written one is issued as a document with a legal analysis. Alongside is the drafting of documents: applications, motions, complaints, contracts, where the lawyer prepares the text but does not conduct the case in court.

The next tier is defence in a criminal case: the defence counsel takes part in investigative actions, files motions, appeals procedural decisions, presents arguments in court, personally participating on the side of the client at all stages.

• oral consultation — explanation of legal rules and procedure without written documents
• written consultation — legal analysis of the situation in the form of a document
• drafting of documents — preparation of applications, motions, complaints, contracts
• defence in a criminal case — participation of defence counsel during the investigation and in court
• representation in court — conduct of the case from preparing the position to enforcement of the decision
• the scope of the form determines whether the assistance is limited to advice or covers the entire proceedings

A criminal case and state-guaranteed legal assistance: when defence counsel is appointed free of charge

In a criminal case, defence counsel participates by agreement or by appointment. Defence counsel by appointment in Kazakhstan is state-guaranteed legal assistance: their work is paid for by the budget. Such assistance is provided by lawyers and legal consultants to certain categories of citizens and in certain cases.

The wishes and financial position of the accused do not matter: where the participation of defence counsel is mandatory, they enter the case regardless of any lawyer hired and of whether the person has money.

Defence counsel is provided by the body conducting the criminal proceedings — the investigator, the inquiry officer, the prosecutor or the court — through the bar association. Defence counsel enters the case from the moment established by law for the category of case. Where their participation is mandatory, a refusal of defence counsel is not binding on the investigating body or the court.

• A minor accused, suspect or defendant.
• A person who, due to mental or physical disabilities, cannot defend their own rights.
• A person who does not speak the language in which the proceedings are conducted.
• A person accused of a crime for which the most severe punishment may be imposed, as well as other cases expressly named in the Criminal Procedure Code of the Republic of Kazakhstan.
• A person in respect of whom the question of applying compulsory medical measures is being considered.
• A person whose interests conflict with the interests of other accused persons, if at least one of them has a defence lawyer.

State-guaranteed legal assistance in civil and administrative cases: where the line is drawn

State-guaranteed legal assistance in a civil case is based on categories of disputes, not on the wishes of a party. The procedure for providing it is established by the Law of the Republic of Kazakhstan on Advocacy and Legal Assistance (2018). The right to such assistance arises when the law expressly names the category of case: for example, recovery of alimony, compensation for harm caused by injury or the death of a breadwinner, and the award of pensions and benefits. The full list is set out in the law.

A free representative in court in an administrative case in Kazakhstan is not provided automatically for every contested act. Assistance is available in cases of administrative offences where the participation of a defence lawyer is mandatory by law, and in other cases expressly named in the law. In other public disputes, the party conducts the case itself or engages a lawyer under a contract.

• recovery of alimony
• compensation for harm caused by injury or the death of a breadwinner
• award of pensions and social benefits
• other categories of cases expressly named in the law
• cases of administrative offences where a defence lawyer is mandatory
• disputes between private individuals over debts, property and transactions — outside the list

The right to state-guaranteed legal assistance does not arise automatically — it must be confirmed with documents and claimed in time, otherwise even where there are grounds, assistance will not be assigned.

How to obtain state-guaranteed legal assistance: step-by-step procedure for applying

The procedure for applying begins with identifying the body that will consider the application. In cases with mandatory participation of a defence lawyer, the request is submitted to the body conducting the criminal proceedings — the defence lawyer is provided by the bar association. For consultation and representation in civil cases, one applies to a lawyer or legal consultant from the list of persons providing guaranteed assistance; the lists are maintained by bar associations and chambers of legal consultants.

The application is accompanied by documents confirming that the person belongs to a category entitled to such assistance, and documents on the substance of the case. A refusal of assistance may be appealed — to the bar association or chamber of legal consultants, to the justice authorities, or to a court.

• Prepare an application stating the applicant's details, the substance of the case and the assistance required.
• Attach documents confirming the right to assistance: identity card, information on income, certificates of status.
• Apply to a lawyer or legal consultant from the list, or to the bar association; in a criminal case — submit a request to the body conducting the proceedings.
• Obtain confirmation of who will conduct the case.
• Get in contact with the assigned specialist and hand over the case materials.
• If refused, obtain a written response with the grounds and appeal it in the established manner.

Which documents and information confirm the right to state-guaranteed legal assistance

The right to legal assistance arises from the law, not from the application. The request is accompanied by materials confirming the applicant's identity and the basis for assistance. The grounds are established by the Law of the Republic of Kazakhstan on Advocacy and Legal Assistance (2018). Some of the information can be obtained through the eGov portal.

An identity card confirms the status of a citizen, a foreigner or a stateless person permanently residing in Kazakhstan. Confirmation of status depends on the category: pensioner, person with a disability, veteran, orphan child, recipient of targeted social assistance. Information on income is needed where the right is linked to the family's financial situation.

• an identity card or another document confirming identity and citizenship;
• a document confirming the ground: a pension certificate, a disability certificate, a veteran's certificate, information on the award of targeted social assistance;
• information on income, if the right depends on the financial situation;
• procedural documents in the case: a statement of claim, a ruling on the initiation of proceedings, a decision in a case on an administrative offence;
• a written explanation of the loss of the document or the impossibility of obtaining it.

The set of documents depends on the applicant's category and the type of assistance.

Refusal of state-guaranteed legal assistance: reasons and what to do next

Refusal of state-guaranteed legal assistance is most often linked to the applicant's undocumented status. The right to such assistance arises from belonging to a specific category of citizens, confirmed by certificates and attestations from authorised bodies. If this does not follow from the papers, the body refuses; the ground can only be removed by additional confirmation.

The second reason is that the case does not fall within the list. Assistance from lawyers and legal consultants at the expense of the budget is provided to specific categories of citizens and in certain cases, so for disputes outside the list the guarantee does not apply, even if the applicant belongs to a privileged category. Both conditions must coincide — status and the nature of the case.

Participation of a lawyer and legal consultant in the system of state-guaranteed legal assistance

The procedure for providing state-guaranteed legal assistance is established by the Law of the Republic of Kazakhstan on Advocacy and Legal Assistance (2018). Assistance is provided by a lawyer, and in the forms provided for by law, by a legal consultant, a member of the chamber of legal consultants. The lists of lawyers and legal consultants providing such assistance are formed by the bar associations and the chambers of legal consultants.

Participation is voluntary: a lawyer or legal consultant declares their readiness to provide such assistance and is included in the list. Control over the provision of assistance is exercised by the justice bodies. Payment is made from the budget at approved rates, not by the client.

• Works within the framework of guaranteed assistance, not under a private agreement.
• Receives payment from the budget, so no separate fee is charged to the client for this assistance.
• Is obliged to maintain lawyer-client privilege and to act in the client's interests.
• Conducts the case to the extent determined by law and by the issued mandate.
• Is responsible for the quality of assistance to the client and to their bar association or chamber.
• The client has the right to challenge and to appeal against the representative's actions.

State-guaranteed legal assistance for an entrepreneur: what a business can count on

State-guaranteed legal assistance in Kazakhstan is provided by lawyers and legal consultants at the expense of the budget to specific categories of citizens and in certain cases. A business entity is not itself among the recipients, but its owner or director may fall under the guarantees as an individual.

The assistance applies where the entrepreneur's status coincides with a protected category: the person is recognised as a victim in a criminal case, participates in proceedings on grounds giving the right to such assistance, or acts as a defendant in a case where the law allows a lawyer at the expense of the budget. The defence is built around the case and procedural status, not commercial activity.

• Participation in a criminal case as a victim or a person whose rights are affected, where the law allows a lawyer at the expense of the budget
• Cases in which a citizen participates on grounds that directly give the right to guaranteed assistance regardless of doing business
• Representation of an LLP and an individual entrepreneur in court and before state bodies — only under a contract, at the company's own expense
• Pre-trial settlement and mediation as a way to close a dispute without court
• Appealing against the actions and decisions of bodies through a higher authority and in court
• Defence during inspections and in enforcement proceedings — under a contract, not at the expense of the budget

State-guaranteed legal assistance and paid services: how to choose a line of defence

Under the Law of the Republic of Kazakhstan on Advocacy and Legal Assistance (2018), state-guaranteed legal assistance is provided on the grounds set out in the law: the category of person, the category of case, the procedural position. A defence lawyer by appointment is provided by the bar association, and acts within the established procedure.

An appointed defence lawyer conducts the case within the limits determined by law and by the mandate, whereas under an agreement the client determines the scope: gathering evidence, expert examinations, counterclaims, work on several counts. It is therefore important to understand in advance which actions relate to mandatory assistance and which require extended representation.

• Determine whether the case qualifies for state-guaranteed legal aid on lawful grounds.
• Distinguish between the actions covered by such aid and the actions requiring a separate engagement.
• Agree on a single position on the case so that the free and the paid parts do not contradict each other.
• Set out the scope of extended representation in writing, specifying the stages and instances.
• Monitor the procedural deadlines at each stage, regardless of who carries out the work.