FIDH jointly with the Paris Bar Association: the new rules regulating lawyers’ activity in Kazakhstan undermine independence of the legal profession

21/04/2021
Statement
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The Parliament of Kazakhstan has adopted amendments to the Law on the Professional Activities of Advocates and Legal Assistance, which place legal professionals under centralized governmental control and violate their freedom of association. FIDH and the Paris Bar Association advocate for the repeal of the new version of the law, as it does not meet international standards on the right to access legal services and the independence of the legal profession.

On April 8, 2021, following deliberations by a joint commission of the Lower (Majilis) and Upper (Senate) Chambers, the Kazakh Parliament adopted controversial amendments to the Law on the Professional Activities of Advocates (Attorneys) and Legal Assistance.[1] The Amendments to the Law provide for even greater centralization of the management of the jurist - consultants (further ‘jurists’) [2]: on the one hand, they increase in size the Regional Jurists’ Bar Associations from 50 to 200 members, and on the other hand, they force these Bar Associations to adhere to the National (Republican) Bar Association.

Membership in the Regional Jurists’ Bar Associations became mandatory for jurists who are not licensed attorneys back in 2018 as a result of another round of tightening legislation in this area. National Jurists’ Bar Association is another innovation introduced by the 2021 amendments: through greater centralisation and influence on this body, the state will be able to additionally control the activity of jurists by imposing frivolous disciplinary penalties and unwarranted rules.

On top of this, the amendments give the Ministry of Justice more powers over the Attorney Bar Associations which constitutes gross interference with the legal profession, designed to be independent and self-organized under international standards notably the Basic Principles on the Role of Lawyers (’the Basic Principles’). The Basic Principles stipulate that “adequate protection of the human rights … requires that all persons have effective access to legal services provided by an independent legal profession.”[3] Similarly, access to an independent lawyer is an essential element of the right to a fair trial provided for in Article 14(3) of the International Covenant on Civil and Political Rights.

Specifically, the cost of services of jurists and attorneys will increase due to additional membership fees, which lawyers will be required to pay to national associations, as well as due to the introduction of a digital information system "Заң көмегі" (Kazakh "Help of the Law"). attorneys. Thus, qualified legal assistance becomes less accessible to the public, which potentially makes these provisions discriminatory, and again, incompatible with the Basic Principles.

The previous version of the Law "On the Professional Activities of Advocates and Legal Assistance", adopted in 2018, although less repressive, contains a number of troubling provisions. The most problematic ones provide for the establishment of a state-controlled National Bar Association for attorneys, interference of the executive in the process of attestation and disciplinary proceedings against attorneys and violations of the freedom of association and self-regulation of attorneys.[4] In 2018, the UN Special Rapporteur on the Independence of Judges and Lawyers, Diego Garcia-Sayan, noted that this law (then a bill) seriously violates international standards.[5]

The new amendments fit into the general trend of state interference in the activities of independent associations and unions in Kazakhstan. For instance, the government recently introduced restrictive legislation in the area of trade unions, which undermined their independence. Given this dangerous context, the FIDH and the Paris Bar Association urge for the repeal of the law, as it could similarly lead to the disappearance of the independent legal profession.

[1] Law of the Republic of Kazakhstan dated July 5, 2018 No. 176-VІ.
[2] The Law uses the term ’jurist – consultant’ to denote practicing in courts lawyers who, unlike attorneys (or advocates), are not licenced to represent clients in criminal and administrative cases.
[3] https://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleofLawyers.aspx
[4] https://www.osce.org/files/f/documents/c/c/376189.pdf
[5] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23579

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