New Law to Boost Defence Lawyers’ Rights

ASTANA – On Feb. 28, a round table on enhancing the role of defence lawyers in protecting constitutional rights and freedoms in criminal proceedings took place here.

The gathering discussed the ongoing reform of the Criminal Procedure Code and launched work on drafting new laws to protect and strengthen the procedural rights of defence lawyers.

“The protection of citizens’ rights remains one of the main aims of national legal policy in Kazakhstan. We believe the current reform of criminal procedure legislation will take into account the need to further support defence lawyers as the primary providers of legal counselling for citizens.” Minister of Justice Berik Imashev told the meeting.

Imashev said the debate would help produce sound and practical recommendations for the reforms.

Aurelia Bouchez, the European Union’s ambassador to Kazakhstan, addressed the meeting.

“The right to a fair trial, which is an integral component of the rule of law, is enshrined in Articles 14 and 16 of the International Covenant on Civil and Political Rights, which Kazakhstan ratified in 2006,” she said. “The principle of a fair trial is based on the concept of equality between the prosecution and defence during the trial. Under the current judicial reform, we welcome all efforts to enhance the role of defence lawyers in the criminal justice system of Kazakhstan.”

Anuar Tugel, head of the Bar Association of Kazakhstan, said that, under the proposed new Criminal Procedure Code, the defence lawyer would have “the right to enter the process only at the moment when a person gets the status of a suspect.”

Tugel said the proposed new code would abolish pre-investigation checks. This would fundamentally change the pre-trial process. This change would strengthen the rights of the accused person, he said.

“From the moment of registering the claim (of criminal conduct) to the moment of identifying the suspect (by the prosecution), the full investigation, collection and (the process of) securing evidence shall be held (as coming under the purview of the legal process)… Accordingly, the mechanism of implementing the right of citizens to be protected shall be significantly strengthened and the opportunities of the defence lawyer shall be seriously expanded,” Tugel said.

Tugel said that at the last meeting of President Nursultan Nazarbayev with the heads of law enforcement agencies, Prosecutor General Askhat Daulbaev raised the issue of empowering defence lawyers by strengthening the constitutional rights and freedoms of citizens. “The defence lawyer is a participant in the legal process, whose actions are aimed at establishing the truth,” he said.

Representatives agreed to support Daulbaev’s proposal to expand the powers and tools of defence lawyers working in cooperation with them.

The round table was attended by Justice Minister Imashev, First Deputy Prosecutor General Johan Merkel, Anuar Tugel, representatives of the President’s Office, deputies of the Mazhilis (the lower house of Parliament) and experts from several European countries, the United States and Russia. Analysts Richard Sedio and Sergei Pashin represented the EU Project in Kazakhstan. The round table also discussed strengthening such legal principles as the equality of parties, collection of evidence, the adversarial principle and trial by jury.

The participants also noted that issues of access in criminal defence cases containing state secrets were not tackled in the new draft of the Criminal Procedure Code. They proposed studying legislation in other countries to frame the necessary new articles of law

The event was organized by the Mazhilis, the Supreme Court, the Bar Association of Kazakhstan, the EU Project “Support of Judicial and Legal Reforms in Kazakhstan,” the Organisation for Security and Cooperation in Europe (OSCE) Centre in Astana, the Legal Policy Research Centre and the Soros Foundation in Kazakhstan.

The EU Project in Kazakhstan has a budget of 3.4 million euros ($4.44 million) and is implemented by a European consortium led by the French Agency for International Legal Cooperation (ACOJURIS) working with ICON in Germany and Louis Berger in France.