“Those, who are ill-informed of their rights look like a foreigner in a foreign country without a translator and knowing a language – Akzhol Kalbekov believes, the director of the Free Legal Aid Coordination Center (FLA CC):
– To start with, I would like to tell a little the history of the SGLA system establishment in Kyrgyzstan. After attainment of independence and Kyrgyzstan’s entry into the path of democratic transitions, the possibility to protect rights and to defend own legitimate interests in a civilized way was enshrined in Article 40 of the Constitution in our country. However, this article remained to some degree declarative, since there was no single policy in the field of legal aid provision funded by the state and relative institutional mechanisms. Actually, this system of the legal aid provision contributed to approximation of justice to the needs of the disadvantaged population.
The process of this problem solution as well as the international commitments assumed by the state led to the necessity to form a state policy for provision of the legal aid to the disadvantaged through developing a relevant draft law. As a result, after long study and analysis of the processes in the field of protecting the rights of the vulnerable population, the law enforcement practice and the existing international experience, on July 17 2009, the Law of the Kyrgyz Republic On State Guaranteed Legal Aid was adopted.
– Why did the necessity to review the law dated 2009 and to adopt a new one emerge?
According to the results of the monitoring and the analysis of the 2009 law implementation, some problems and shortcomings were revealed that prevented from effective implementation of its provisions. I will not rest on all of them, but will highlight the main ones:
– within the frameworks of new constitutional provisions implementation (the 2010 Constitution), which contained the guidelines regarding provision of the qualified legal aid to the citizens at the expense of the state, it was required to adopt a more socially beneficial law facilitating the stakeholders access to it, to expand the provision of SGLA through increasing the scope of government bodies and communities authorized to carry out such an activity as well as increasing a degree of their responsibility for improper fulfillment of their duties;
– it was necessary to review the conceptual frameworks of the law taking into account the updated criminal policy in terms of the legislation reform as a whole, and to create a consecutive and coordinated system for provision of the qualified legal aid.
All these and other aspects of this problem led to the need to review completely the previous Law and to develop its new analogue that also aimed at creating the system of the primary legal support and improving the system of the secondary legal aid.
A newly adopted document is more simple to use and more socially beneficial since it has expanded the scope of persons, who are entitled to be covered with SGLA. It shall be noted that foreign citizens, persons without citizenship and refugees have now an opportunity to receive free legal aid.
The clear criteria have been established the compliance with which allows to determine exactly the scope of the entities entitled to the free legal aid.
The system of bodies and persons involved in provision of SGLA has also been reviewed towards expansion. Such approach has allowed to expand significantly the provision of the legal aid, to facilitate the access of the stakeholders to it as well as to increase a degree of responsibility of the government authorities and the representatives from the professional legal community.
In order to ensure effective public administration, coordination and control over the provision of the legal aid, the Law stipulates the creation of a coordination body FLA Coordination Center under the Ministry of Justice of the Kyrgyz Republic, the functions of which include organization and provision of the legal aid.
This approach has allowed to structure the relations arising in connection with the provision of SGLA and to improve the efficiency of coordination for its provision.
– What is the situation with financing of these services?
– The legislation on SGLA traditionally covers the following two aspects: provision of legal information and legal services to the citizens by free legal aid centers and/or specialized organizations (the so-called primary free legal aid) and assistance during legal proceedings, judicial and procedural assistance and representation by lawyers (the so-called secondary free legal aid). The secondary legal aid is funded by the state. This service is provided within the frameworks of criminal, civil and administrative cases at all stages of the legal proceeding and exclusively by the lawyers included in the SGLA national register of lawyers.
To ensure the quality of the qualified legal aid provided by the lawyers, the size of their salary was increased. We should understand that the lawyer’s remuneration should be commensurate with the actual expenses that he incurs in the course of the legal aid provision. In his turn, a lawyer, to receive his fee, should meet the minimal parameters of the service quality the so-called Lawyers performance quality standards, for which the state agrees to pay. This is also one of the innovations in the law contributing to improvement of SGLA efficiency and quality.
It shall be noted that over the last three years the state financing of the qualified legal aid has increased almost by 3-3.5 times and at present, the total amount of the funds allocated to it amounts to over KGS 70 million (for comparison in 2018, it amounted to about KGS 18 million). It is probably not little, but, in general, enough today to ensure such assistance. However, if we compare with the similar figures in other states, for example, in the countries of EU or Canada, the USA, of course, the amount of the aid provided by the state is several times less and even dozens of times.
Unfortunately, the process of the legal advice is not funded only by the countrys budget. This type of the legal aid is provided by the government entities, the local bodies within the area of their responsibility. Pursuant to the Law, profit and non-profit organizations, and legal clinics under higher educational institutions are entitled to provide the legal advice.
The assessment and the conclusions have shown that most people covered with SGLA can solve their problems within the primary free legal aid system, i.e. with the help of proper legal advice and consultation. This means fewer clients, who will have to receive the secondary free legal aid. Therefore, less budget funds will be spent on this expensive type of SGLA. These front-line service providers should adequately respond to the needs of the vulnerable population and consequently, serve as an important filter for the secondary state guaranteed legal aid.
– Since we have started talking about international standards, the question is natural: have you monitored the comparison, is the system for providing SGLA better or worse organized in our country than in other countries?
– There are various models of the institutional framework in the world related to the free legal aid. However, it is imperative to note that there are no international standards and principles on how the institutional framework should be created and organized; most importantly it should be able to efficiently and effectively provide SGLA. In addition, given the peculiarities of the legislative system and their impact on the general state budget as well as the need to ensure financial sustainability of SGLA, the system of the free legal aid shall be rationally and reasonably established using traditionally available state infrastructure and resources currently used.
We have definitely studied the experience of all countries or most of the states, where there are such systems, but they are all different. In fact, we have built the system in Kyrgyzstan that best meets characteristics and requirements of the society, aspects of the same Bar associations work. Therefore, I think that such system is undoubtedly required. The state should invest the funds in it, since it is a social project. We have not copied the system of the free legal aid in other countries. We have taken the best from them, in our viewpoint, taking into account our capabilities and a national mindset. If we compare the operating principle of the SGLA Institute in Kyrgyzstan with some other states, ours is more or less coincides with the nature of the activity of the similar entities in Georgia and Ukraine, but we also have our own features.
In addition, it shall be noted that the Kyrgyz SGLA system fully complies with the international standards. It is confirmed by the independent examination of the Law by leading experts from the European countries that have highly appraised this document.
Since 2014, our partners, the UNDP and MFA of Finland project Towards a sustainable access to justice for legal empowerment in the KR have supported us. This project has made great contribution to development and establishment of the State Guaranteed Legal Aid system.
In a word, nowadays we are among the top countries, at least in Central Asia, in terms of the advanced standards of the legal aid to the population.
– How much can now a lawyer earn per month?
– The fixed payment is envisaged for each stage of the legal aid provision and the additional payment for complexity and multi-episodic nature of a case as well as the bonus for exceeding the procedural periods of the case hearing within the frameworks of the legal proceeding. For example, one lawyer in one criminal case can receive, on average, from about KGS 15-25 thousand. I am confident that this amount of the fee is a good motivation for the lawyers especially in the competitive market.
At the same time, the issues of quality, its standardization and monitoring are always on the agenda and are not less topical today for both the state guaranteed legal aid and the Bar association, on the whole.
Therefore, definite legal mechanisms have been implemented, according to which, the lawyer can receive his fee within the frameworks of the State Guaranteed Legal Aid only if he meets the performance quality standards and if there are no complaints from a SGLA receiver.
– And what is the result of this practice?
– For example, within the criminal cases as per the results for 2019, the courts have brought eight acquittal judgements and as per the results for 2020 – fourteen. We have never had such a high number of successful defense. I consider it is a convincing result that the Bar system has started working more effectively. In addition, over 65 percent of the cases have been solved with the positive outcomes for the SGLA receivers. This is a result of the work carried out by us for effective implementation of the legislation on SGLA. Unfortunately, the populations awareness of our work is very poor.
Therefore, one of our objectives is to make every citizen aware of this system. As a lawyer, I can say that those, who are ill-informed of their rights look like a foreigner in a foreign country without a translator and knowing a language.
An interviewer is Andrei Tokombaev