Commentary on Article 68. Invitation, Appointment, Replacement of Defence Counsel, and Remuneration for Their Work under the Criminal Procedure Code of the Republic of Kazakhstan

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1. A lawyer shall be invited to act as defence counsel by a witness entitled to the right to defence, a suspect, an accused person, a defendant, a convicted person, an acquitted person, their legal representatives, as well as other persons acting on the instructions or with the consent of a witness entitled to the right to defence, a suspect, an accused person, a defendant, a convicted person, or an acquitted person. A suspect, a witness entitled to the right to defence, an accused person, a defendant, a convicted person, or an acquitted person shall have the right to invite several lawyers to act as defence counsel.

2. At the request of a witness entitled to the right to defence, a suspect, an accused person, a defendant, a convicted person, or an acquitted person, the participation of defence counsel shall be ensured by the body conducting the criminal proceedings.

3. In cases where the participation of the selected or appointed defence counsel is impossible for an extended period (at least five days), the body conducting the criminal proceedings shall have the right to propose that the witness entitled to the right to defence, the suspect, the accused person, the defendant, the convicted person, or the acquitted person invite another defence counsel, or to take measures to appoint defence counsel through a professional organisation of lawyers or its structural subdivisions. The body conducting the criminal proceedings shall not have the right to recommend a specific person to be invited as defence counsel.

4. In the event of detention or remand in custody, if the appearance of the defence counsel selected by the suspect, accused person, defendant, convicted person, or acquitted person is impossible within twenty-four hours, the body conducting the criminal proceedings shall propose that the suspect, defendant, convicted person, or acquitted person invite another defence counsel, and, in the event of refusal, shall take measures to appoint defence counsel through a professional organisation of lawyers or its structural subdivisions.

5. Remuneration for the work of a lawyer shall be paid in accordance with the legislation of the Republic of Kazakhstan. Where grounds exist, the body conducting the criminal proceedings shall be obliged to release the suspect, accused person, defendant, convicted person, or acquitted person, either fully or partially, from payment for legal assistance. In such cases, remuneration for the lawyer's work shall be paid at the expense of the State.

6. Expenses for the remuneration of lawyers may also be charged to the State in the case provided for in Part Three of Article 67 of this Code, where the lawyer participated in the pre-trial investigation or court proceedings by appointment.

7. Where several defence counsel participate in criminal proceedings, a procedural action requiring the participation of defence counsel shall not be deemed unlawful on the grounds that not all defence counsel representing the relevant suspect, accused person, defendant, convicted person, or acquitted person participated in it.

8. A lawyer shall enter the case as defence counsel upon presentation of the lawyer's certificate and a warrant certifying their authority to provide defence to a specific person. Another person, in accordance with the provisions of Part Two of Article 66 of this Code, shall submit a document confirming their right to participate in criminal proceedings as defence counsel (a marriage certificate, a document confirming family relations with the suspect, accused person, defendant, convicted person, or acquitted person, or decisions of bodies exercising guardianship and trusteeship functions).

Note of the Republican Centre for Legal Information!

Part 8 of Article 68 of the CPC is also provided in the wording of Law of the Republic of Kazakhstan No. 177-VI dated 5 July 2018 (to enter into force on 1 January 2019):

“8. A lawyer shall enter the case as defence counsel upon presentation of the lawyer's certificate and written notification of defence (representation) provided for by the Law of the Republic of Kazakhstan ‘On Advocacy and Legal Assistance’. Requiring any other documents confirming the lawyer's authority to conduct a specific case shall be prohibited. Another person, in accordance with the provisions of Part Two of Article 66 of this Code, shall submit a document confirming their right to participate in criminal proceedings as defence counsel (a marriage certificate, a document confirming family relations with the suspect, accused person, defendant, convicted person, or acquitted person, or decisions of bodies exercising guardianship and trusteeship functions).”

Parts 1–2 of Article 68 of the CPC emphasise that, as a general rule, the invitation of defence counsel is the responsibility of participants representing the defence, as well as a witness entitled to the right to defence. Depending on the nature of the case, its complexity, and other circumstances, there may be several defence counsel. However, this is not always the case; therefore, the law allows the body conducting the criminal proceedings to invite defence counsel upon the written request of the person in need of defence. In order to avoid being accused of bias, the body conducting the criminal proceedings shall not have the right to recommend to that person whom they should invite as defence counsel in the case. As regards the participation of a group of defence counsel in a case, the law makes a special reservation that they are not required to be present in their entirety when procedural actions requiring the participation of defence counsel are carried out. This shall in no way affect the legal validity of such actions (Part 7 of Article 68 of the CPC).

The provisions of Parts 3–4 of Article 68 of the CPC require particular attention in practice. They establish possible cases in which the defence counsel invited to participate in the case or appointed by the investigator through a professional organisation of lawyers or its structural subdivisions does not participate in the proceedings. The existence of such provisions in the law does not in any way constitute permission to conduct procedural or investigative actions without the participation of defence counsel within the periods specified in the law (the absence of defence counsel at the place where the pre-trial investigation is conducted for at least five days, and, in cases involving detention or the application of remand in custody, for at least one day). Even in these circumstances, the CPC requires procedural or investigative actions to be conducted with the mandatory participation of defence counsel. The task of the inquiry officer or investigator is to ensure the participation of defence counsel in the case from the moment such participation becomes mandatory. However, in these practical situations, the initiative to invite another defence counsel should initially be taken, upon the recommendation of the body conducting the criminal proceedings, by the defence, the acquitted person, or the witness entitled to the right to defence; alternatively, where the defence directly refuses to participate in the defence, including due to its inability to arrange such participation, the function of inviting defence counsel shall be assumed by the body conducting the criminal proceedings.

Parts 5–6 of Article 68 of the CPC regulate the procedure for remunerating a lawyer's work: either at the expense of the subject of the criminal offence, the acquitted person, or the witness entitled to the right to defence who invited the defence counsel, or at the expense of the State. Payment at the expense of the State usually takes place when defence counsel is introduced into the case by appointment of the body conducting the criminal proceedings, following the defence's express refusal of defence counsel in the cases provided for in Parts 1–2 of Article 69 of the CPC.

For example, the subject of the criminal offence, the acquitted person, or the witness entitled to the right to defence may refuse the participation of defence counsel, or refuse defence counsel during the pre-trial investigation or at the judicial stages, or refuse to invite defence counsel because they do not have the financial means to pay for the lawyer's work, whereas the participation of defence counsel in the case is mandatory under the law.

In the first case, where payment is made at the expense of the defence, the acquitted person, or the witness entitled to the right to defence, the amount of remuneration for legal assistance provided by lawyers and reimbursement of expenses associated with defence and representation shall be established by a written agreement between the lawyer and the person seeking assistance. Concluding an agreement is mandatory and shall be carried out in accordance with the procedure established by the civil legislation of the Republic of Kazakhstan (Chapter 33 of the Special Part of the Civil Code, “Paid Provision of Services”). One copy of the agreement on the provision of legal assistance shall be handed to the person with whom the agreement has been concluded.

The essential terms of the agreement shall include: 1) the surname, first name and patronymic (if any) of the lawyer, or the name of the law office, which has accepted the assignment as defence counsel or representative, etc.; 2) the indication of the organisational form of the lawyer's practice and the Bar Association of which the lawyer who accepted the assignment is a member; 3) the subject matter of the assignment; 4) the amount and procedure for payment for the legal assistance provided and reimbursement of the lawyer's expenses associated with defence and representation, as well as the conduct of reconciliation procedures; 5) the procedure and conditions for termination of the agreement. Agreements that make the amount of remuneration for legal assistance provided by lawyers dependent on the outcome of the case or the success of the lawyer's professional activities, as well as agreements under which a lawyer receives a portion of the awarded amount, shall not be permitted. A lawyer or a law office shall not be permitted to receive cash as payment for legal assistance, including oral legal consultations, or for expenses associated with the performance of the assignment without issuing the relevant financial document (Article 47 of the Law “On Advocacy and Legal Assistance”).

In the second case, where remuneration for the lawyer's work is paid at the expense of the State, payment for various types of legal assistance provided by the lawyer, as well as reimbursement of travel, transportation and other expenses, shall be made from budgetary funds on the basis of resolutions issued by the bodies conducting the criminal proceedings.

At the same time, the amount of remuneration for state-guaranteed legal assistance provided by a lawyer and reimbursement of expenses associated with legal counselling, defence and representation, as well as the conduct of reconciliation procedures, was approved by Resolution No. 834 of the Government of the Republic of Kazakhstan dated 13 December 2018.

The procedure for paying for legal assistance provided by a lawyer and reimbursing the corresponding expenses in such cases is established by the Rules for Payment for State-Guaranteed Legal Assistance Provided by a Lawyer and Reimbursement of Expenses Associated with Legal Counselling, Defence and Representation, as well as the Conduct of Reconciliation Procedures, approved by Order No. 617 of the Minister of Justice of the Republic of Kazakhstan dated 8 December 2015 (see also paragraphs 1, 3–7, and 16–17 of Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated 29 June 2018, “On the Recovery of Procedural Costs in Criminal Cases”).

In accordance with the aforementioned Rules for Payment for State-Guaranteed Legal Assistance, which it is appropriate to reproduce in full, the territorial justice authority shall make payments to lawyers who have concluded agreements on the provision of state-guaranteed legal assistance for the state-guaranteed legal assistance provided by them and reimburse expenses associated with legal counselling, defence and representation, as well as the conduct of reconciliation procedures, on the basis of an application for payment for state-guaranteed legal assistance provided by a lawyer and reimbursement of expenses associated with legal counselling, defence and representation, as well as the conduct of reconciliation procedures, submitted by the Bar Association of the region, cities of republican significance, or the capital, using budgetary funds, in the form prescribed in the Appendix to the Rules (paragraph 3).

The application shall be prepared by the Bar Association on the basis of the lawyer's application for payment for state-guaranteed legal assistance provided by the lawyer and reimbursement of expenses associated with legal counselling, defence and representation, as well as the conduct of reconciliation procedures, from budgetary funds, in the form prescribed in Appendix 2 to the Rules, with the following documents attached:

acts confirming the work performed by lawyers in providing legal counselling, prepared on the basis of the register, which shall indicate: the surname, first name and patronymic (if any) of the lawyer; the number of individuals who received free legal assistance; the number of oral or written legal consultations; the number of written legal documents prepared; the total number of hours during which legal assistance was provided; the lawyer's signature;

resolutions of the bodies conducting the criminal proceedings, courts and bodies (officials) authorised to consider cases of administrative offences, as well as court rulings in civil cases on the appointment of a lawyer;

resolutions of the bodies conducting the criminal proceedings, courts and bodies (officials) authorised to consider cases of administrative offences, as well as rulings of courts authorised to consider civil cases, on releasing a person in need of legal assistance from payment for such assistance and reimbursement of expenses associated with defence or representation, and on charging the amounts payable to budgetary funds, which shall indicate: the position, surname, first name and patronymic (if any) of the person who issued the resolution; the name of the case and the date of issuance of the resolution; personal details of the person released from payment for legal assistance and reimbursement of expenses associated with defence and representation; the article of the Criminal Code of the Republic of Kazakhstan and the category of the criminal offence in the commission of which the person is suspected or accused, or the article of the Code of the Republic of Kazakhstan on Administrative Offences providing for the person's administrative liability; the preventive measure in the criminal case or the measure ensuring proceedings in the administrative offence case (delivery to the place where the administrative offence report is drawn up, administrative detention or compulsory appearance); the date on which the actions of the suspect or accused person were reclassified; the grounds for releasing the person from payment for legal assistance and reimbursement of expenses associated with defence and representation; the surname, first name and patronymic (if any) of the lawyer, the number and date of the written notification of defence (representation) certifying the lawyer's authority to provide defence (representation); the place, date, start time and end time of the procedural actions in which the lawyer participated; the duration of the waiting time for the commencement of a procedural action scheduled with the participation of the lawyer or for the continuation of a procedural action in the event of its postponement (if such circumstances occurred), indicating the date and time; the duration of the waiting time for the commencement of a court hearing or for the continuation of a court hearing in the event of its postponement (if such circumstances occurred); the duration of the time spent by the lawyer reviewing the case materials; the duration of the time spent reviewing the materials of a criminal or civil case, or an administrative offence case, at any stage of the proceedings, including the record of the person's detention, the resolution on the application of a preventive measure, the records of procedural actions conducted with the participation of defence counsel and their client, the documents that were presented or should have been presented to their client, as well as the records of court hearings; the duration of the time spent by the lawyer counselling their client on developing the line of defence and on issues arising during the proceedings; the duration of the time spent discussing the conclusion of a procedural agreement, preparing by the lawyer of applications, motions, procedural agreements, agreements on reaching reconciliation through mediation, complaints against actions (inaction) and decisions of the inquiry officer, investigator, prosecutor and court, private appeals, appellate, cassation and other complaints, objections to appellate, cassation and other complaints, amicable settlement agreements, agreements on the settlement of a dispute (conflict) through mediation or agreements on the settlement of a dispute through a participatory procedure, responses (objections) to civil claims (statements of claim) in defence of and in the interests of the client, as well as comments on the record of the court hearing; the number of working days spent on a business trip involving the lawyer's travel to another locality to provide legal assistance; the full name and banking details of the relevant Bar Association of which the lawyer is a member;

rulings of judges or courts in civil cases on releasing a person in need of legal assistance from payment for such assistance and reimbursement of expenses associated with defence or representation, and on charging the amounts payable to budgetary funds, which shall indicate: the name of the court, the surname, first name and patronymic (if any) of the judge who issued the ruling or resolution; the name, place and date of consideration of the case; the surname, first name and patronymic (if any) of the person released from payment for legal assistance and reimbursement of expenses associated with defence and representation; the grounds for releasing the person from payment for legal assistance and reimbursement of expenses associated with defence and representation; the surname, first name and patronymic (if any) of the lawyer, the number and date of the written notification of defence (representation) certifying the lawyer's authority to provide defence (representation); the date and time of commencement and completion of the procedural actions in which the lawyer participated; the duration of the time spent by the lawyer reviewing the case materials; the dates and duration of court hearings in which the lawyer participated; the duration of the waiting time for the commencement of a court hearing or for the continuation of a court hearing in the event of its postponement (where such circumstances occurred); the duration of the time spent by the lawyer preparing applications, motions, responses (objections) to statements of claim, private, appellate, cassation and other complaints, objections to appellate, cassation and other complaints, amicable settlement agreements, agreements on the settlement of a dispute (conflict) through mediation or agreements on the settlement of a dispute through a participatory procedure in the interests of the client, as well as comments on the record of the court hearing; the number of working days spent on a business trip involving the lawyer's travel to another locality to provide legal assistance; the full name and banking details of the relevant Bar Association of which the lawyer is a member (paragraph 4).

Travel expenses incurred by a lawyer in connection with defence and representation shall be reimbursed from budgetary funds in the cases specified in subparagraphs 2), 3), and 4) of paragraph 2 of the Rules, in accordance with the Law (paragraph 5).*

In the cases specified in paragraph 2 of the Rules, the amount payable from budgetary funds for an attorney's participation in a particular case shall be calculated by the Bar Association, taking into account the following periods of time:

waiting for the commencement of a procedural action or court hearing, calculated from the time the attorney arrives at the time specified in the notification of the relevant authority, provided that the attorney was not participating in other cases during that time;
waiting for the continuation of a procedural action or court hearing where it has been adjourned to another time or another day, but for no more than one day, provided that the attorney was not providing other types of legal assistance to other persons during that time;
reviewing materials during pre-trial investigation or after a criminal case has been received by the court, but before the case is considered at the main court hearing, or reviewing a civil case or a case concerning an administrative offense, including the record of detention of a person subject to criminal or administrative liability, the ruling on the application of a preventive measure, records of procedural actions carried out with the participation of the defense counsel and the person represented by the defense counsel, documents that were presented or should have been presented to the person represented by the defense counsel, as well as records of court hearings;
visiting a person represented by the defense counsel who is under house arrest or held in custody, for the purpose of developing a defense strategy or providing consultations on matters arising during the proceedings in the case, calculated from the moment the attorney submits the summons form for a meeting with the person represented by the defense counsel until the certificate confirming the visit to that person is received from the pre-trial detention facility or temporary detention facility, or visiting an attorney's convicted client serving a sentence in a penal enforcement system institution for the purpose of providing legal assistance in accordance with the legislation of the Republic of Kazakhstan, calculated from the moment of registration in the Visitor Registration Log of the penal enforcement system institution, in the form approved by Order No. 63 dсп of the Minister of Internal Affairs of the Republic of Kazakhstan dated April 12, 2017 (registered in the electronic Reference Control Bank of Regulatory Legal Acts of the Republic of Kazakhstan on May 12, 2017, No. 5120), until receipt of a certificate from the relevant institution confirming the attorney's meeting with the convicted person;
visiting a person represented by the defense counsel who has been subjected to administrative detention, for the purpose of developing a defense strategy or providing consultations on matters arising during the proceedings in the case;
drafting applications, motions, responses (objections) to statements of claim, private, appellate, cassation and other complaints, objections to appellate, cassation and other complaints, settlement agreements, agreements on the settlement of a dispute (conflict) through mediation or agreements on the settlement of a dispute through a participatory procedure in the interests of the client, as well as comments on the minutes of court hearings.

The duration of an attorney's engagement during a meeting with a suspect or accused person held in custody, or with a person subjected to administrative detention, compulsory appearance or delivery to an internal affairs body (police), shall be determined on the basis of certificates issued by pre-trial detention facilities, temporary detention facilities or special detention centers of internal affairs bodies (paragraph 7).

Where an attorney provides legal assistance in a particular case by travelling to another locality, payment shall be made for a full working day, regardless of the duration of procedural actions or court proceedings in the case, provided that the attorney did not participate in proceedings in other cases on that day (paragraph 8).

Where a person subject to criminal or administrative liability refuses the appointed attorney, payment shall be made for the time spent by the attorney reviewing the case materials at any stage of the proceedings, providing legal assistance during meetings, including drafting by the attorney of applications, motions, responses (objections) to statements of claim, private, appellate, cassation and other complaints, objections to appellate, cassation and other complaints, settlement agreements, agreements on the settlement of a dispute (conflict) through mediation or agreements on the settlement of a dispute through a participatory procedure in the interests of the client, as well as comments on the minutes of court hearings, procedural formalization of such refusal, and the attorney's travel expenses (paragraph 9).

A ruling on payment for legal assistance and reimbursement of the attorney's expenses related to defense and representation at the pre-trial proceedings stage of a criminal case shall be issued on the basis of the attorney's application within three working days from the date of receipt of the attorney's application and shall be delivered or sent to the attorney on the day it is issued; where the assignment lasts for more than one month, it shall be issued no later than the last working day of each month. A ruling on payment for legal assistance provided to a person subject to administrative liability and reimbursement of the attorney's expenses related to defense shall be issued on the basis of the attorney's application within three working days from the date of receipt of the attorney's application and shall be delivered or sent to the attorney on the day it is issued in the administrative offense case. This ruling may also be adopted after the pronouncement of the verdict, upon the attorney's application. A ruling on payment for legal assistance provided to a defendant, convicted person, acquitted person or victim, and reimbursement of expenses related to defense and representation in a criminal case considered by a court, shall be issued on the basis of the attorney's application and delivered or sent to the attorney on the day the verdict is pronounced or another judicial act is issued. In exceptional cases, where continuous court proceedings last for more than one month, the court's ruling shall be issued monthly. A determination on payment for legal assistance in a civil case and reimbursement of expenses related to representation shall be issued on the basis of the attorney's application within three working days from the date of receipt of the attorney's application and shall be delivered or sent to the attorney on the day it is issued. One copy of the ruling or determination concerning a particular case shall be attached to the materials of the relevant case, the second copy shall be issued or sent to the attorney on the day it is issued, and the third copy shall be sent to the Bar Association no later than the day following its issuance. In the application for payment for the legal assistance provided and reimbursement of expenses related to defense and representation, the attorney shall indicate a detailed calculation of the time spent providing legal assistance in the particular case, as well as travel expenses. The attorney shall be liable under the Law for the inaccuracy of the information specified in the application (paragraph 10).

Based on the results of reviewing attorneys' applications concerning the provision of state-guaranteed legal assistance and the documents attached thereto, the Bar Association shall submit an application to the territorial justice authority by the 7th day of the month following the reporting month, and for December, no later than December 15. The application shall be accompanied by the documents specified in subparagraphs 1)—4) of paragraph 5 of the Rules (paragraph 11).

Following verification of the compliance of the Bar Association's application with the information specified in the rulings or determinations, the territorial justice authority shall prepare, on a monthly basis and in an arbitrary form, a reconciliation statement of the work performed by attorneys, broken down by types of legal assistance and indicating the amounts payable. It shall transfer to the Bar Association's account the amounts payable to attorneys, broken down by types of legal assistance and categories of criminal offenses, no later than the 15th day of the month following the reporting month, and for December, no later than the 20th day of the reporting month. Where discrepancies are identified between the information specified in the Bar Association's application, rulings or determinations and the requirements provided for in subparagraphs 3) and 4) of paragraph 5 of these Rules, the territorial justice authority shall return them to the Bar Association for correction of arithmetic and other errors and clerical mistakes (paragraph 12).

Financing of funds payable to attorneys under an application submitted by the Bar Association after December 15 of the current year shall be provided from the funds of the republican budget allocated in the following year (paragraph 13).

An important circumstance is the act authorizing the admission of defense counsel to the case. An attorney shall be admitted to participate in a case on the basis of a ruling issued by the authority conducting the criminal proceedings, specifying that the powers of the defense counsel listed in Article 70 of the Criminal Procedure Code have been explained.

An attorney's authority to conduct a particular case shall be certified by a warrant issued by a legal consultation office or law firm, and where the attorney carries out activities individually without registering a legal entity, by the Presidium of the Bar Association. The form of the warrant shall be approved by the authorized body. Supervision and accounting of the issuance of warrants shall be carried out by the Presidium of the Bar Association. In addition to the above-mentioned documents, the attorney shall also be required to present an attorney's certificate. The form of the attorney's certificate and the procedure for completing it shall be developed and approved by the Republican Bar Association.

The powers of a foreign attorney carrying out activities on the basis of a relevant international treaty ratified by the Republic of Kazakhstan shall be confirmed by documents certifying the attorney's identity, status as an attorney and authority to provide legal assistance. An attorney shall have the right to practice law throughout the territory of the Republic of Kazakhstan, as well as beyond its borders, if this is necessary for the performance of an accepted assignment and does not contradict the legislation of the relevant states or the international treaties of the Republic of Kazakhstan (Article 46 of the Law dated July 5, 2018, “On Advocacy and Legal Assistance”, effective in this version until January 1, 2019). When deciding on the participation in a case as defense counsel of the spouse, close relatives or legal representatives of a suspect, accused person, defendant, convicted person, acquitted person or witness entitled to defense, the authorities conducting criminal proceedings shall be required to demand that they submit the documents specified in Part 8 of Article 68 of the Criminal Procedure Code: a marriage certificate, birth certificate, identity documents, etc.

As of January 1, 2019, pursuant to Article 46 of the Law dated July 5, 2018, “On Advocacy and Legal Assistance”, an attorney's authority to conduct a particular case must be confirmed exclusively and solely on the basis of the attorney's certificate and written notification of defense (representation). Requiring any other documents confirming an attorney's authority to conduct a particular case is prohibited. The form of the attorney's certificate and the procedure for completing it shall be developed and approved by the Republican Bar Association. The written notification of defense (representation) shall indicate the surname, first name and patronymic (if any) of the individual subject to defense (representation), the name of the legal entity represented, as well as the date and registration number of the agreement for the provision of legal assistance. The written notification of defense (representation) shall be signed by the attorney carrying out the defense (representation). The form of the written notification of defense (representation), including the list of other information to be included therein, shall be approved by the Republican Bar Association in coordination with the authorized body. An attorney shall be liable, as established by the Law “On Advocacy and Legal Assistance” and other laws of the Republic of Kazakhstan, for entering inaccurate information into the written notification of defense (representation).

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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Article 68. Invitation, appointment, replacement of a defender, payment for his Labor Code of the Republic of Kazakhstan of the Criminal Procedure Code of the Republic of Kazakhstan

Article 68. Invitation, appointment, replacement of a defender, payment for his Labor Code of the Republic of Kazakhstan of the Criminal Procedure Code of the Republic of Kaza...