Access to Justice: The Problem of State-Guaranteed Free Legal Aid in Tajikistan
Abstract: Right to access to justice is one of the most important human rights. Human rights are meaningless if they cannot be enforced. Thus access to legal assistance, fair trails and effective remedies are essential for a fair and just society. It is a widely accepted fact that qualified legal aid is one of the most important components of the access to justice. This right is guaranteed to everyone including those who cannot afford to cover expenses related to the legal assistance. The problem is more acute for the countries in transition such as Tajikistan where poverty and social exclusion are the most pressing issues. This thesis evaluates the situation with providing state guaranteed free legal aid in criminal and civil cases in the Republic of Tajikistan. Particular attention is paid to compliance of Tajik national legislation with the international standards in the field of rendering free legal assistance. The thesis consists of five main parts. In the beginning of the present paper few words are devoted to introductory remarks. Here the reader may find some background information about social and economical status of Tajikistan, statement of the problem and methodology used in present research. The first Chapter looks into international standards on ensuring legal assistance. After mentioning the main United Nations and regional instruments containing guarantees on the right to FLA, the thesis is focused on the rendering free-of-charge legal assistance in criminal and civil cases. Four aspects of the right on legal assistance in criminal cases that are guaranteed by the international standards are covered in the first Chapter: the right to defend himself in person or through the chosen counsel; possibility to choose the lawyer in certain circumstances; the right to free legal representation in the case of lack of financial means and when interests of justice so require; the quality of rendered free legal aid. As the right to FLA is not absolute and is subject to some limitations, the author examines the conditions in which a person is entitled to FLA in a criminal case. Two main criteria are used in international standards for appointing a legal representative to the accused in a criminal case: financial criteria and criteria “in the interest of justice”. Unlike criminal cases the question of rendering FLA in civil and other categories of cases is not settled in details by the international standards. However, the practice of the European Court on Human Rights shows that right to FLA is not limited only to criminal cases. Three criteria were elaborated by the Court in order to determine if an individual should be granted legal aid, namely: the complexity of the procedure; the necessity to address complicated points of law or facts; the emotional involvement of the case. Even though Tajikistan is not a party to the European Convention on Human Rights the author decided to include this part as an example of international standards. After the description of the international standards, the thesis shifts to the world models for delivering free legal aid. The overview of the advanced models of legal aid provision in different countries helps to find the solutions that can be used to achieve this. Chapter III gives overview of Tajik national framework of the right to defense with a particular attention to FLA. The domestic legislation is explained and analyzed and problems in the legislation are pointed out. The author begins the Chapter with the relevant constitutional provisions concerning the right to legal assistance. There is no single unified legal document regulating issues of providing FLA. The legislation on this issue is fragmental and insufficient. The circumstances when a person is eligible to apply for FLA in criminal and civil cases are examined in Chapter II. In the end of the second part of the thesis the gaps and shortcomings in the legal regulation of the issue of rendering FLA are revealed and addressed. Chapter IV gives to the reader an opportunity to overview the general situation with rendering FLA in Tajikistan and also to focus on more specific problems of FLA. The author outlines the situation with the Bar, the process of the Bar reforms, legal profession and state expenses for FLA. This information is supported by statistical data. The system of Bar needs reforms, and discussions on that have started back in 2006 but unfortunately there is no compromise among representatives of different formations of lawyers about the future of the Bar. There is no separate budget for legal assistance in Tajikistan. In practice khukumats (bodies of local authorities) pay to lawyers out of unused funds which are usually very limited. In practice only lawyers’ members of Collegia are burdened with rendering free legal aid. The attorneys are not involved in this process. These problems are illustrated in the subchapter describing background information concerning FLA in Tajikistan. In the parts 3-6 of Chapter III the author analyses some empirical data (viewpoint of lawyers) on specific practical questions of providing FLA such as: lawyers’ workload with “ex officio” cases, the procedure of appointing the lawyer, remuneration of the lawyer for the conduct of the case and control of the quality of FLA. At the end of the thesis, the author makes some concluding remarks about existing problems with rendering free legal in the Republic of Tajikistan and gives some recommendations that can be used for the improvement of the situation.
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