Article 8 – Legal Assistance
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
What does this right mean?
In short, the article means everyone has the right to be assisted by a lawyer. If someone does not have the money for that, the state provides a lawyer to that person.
In Article 8 of the UDHR, it is specifically about protection by the state if someone's constitutional rights or human rights are violated. Such as by the police or a municipal government. The right to legal assistance in cases of human-rights violations also makes governments more responsible, because violators can be held responsible. Also, if they are employed by the government.
True peace is not merely the absence of war, it is the presence of justice.
What is the history of this right?
Fair trials and the right to legal assistance are core elements of a legal system. After two world wars, the drafters of the Universal Declaration wanted to add the principle of the right to legal assistance. Because justice is more than just punishing criminal activity. This article was meant to protect the constitutional state. The drafters also wanted to emphasise the idea of equality before the law. By providing everyone, of every religious belief, descent or other characteristics, legal assistance from authorised national judicial institutions by means of this article, everyone is made equal before the law.
Where and how is this right documented?
The right to actual legal assistance is included in Article 13 of the ECHR. And in Article 47 of the Charter of Fundamental Rights of the European Union.
In the Constitution of the Netherlands, the right to actual legal assistance from authorised judicial institutions is in Article 18. In this article, it is emphasised that no one can be denied legal assistance. So, the starting point is: the law grants legal assistance to everyone and it is illegal to withhold this assistance from someone.
How topical is this human right?
In the Netherlands and in the various other instruments, the right to legal assistance is safeguarded. Can this legal assistance actually be provided in practice? In the Netherlands, that is getting more and more difficult. In the Netherlands, there is the system of legal aid: the government pays the costs of a lawyer for people who do not have enough money for it.
Legal aid lawyers are paid a set number of hours per case. This is called the fixed sum. Research shows that legal aid lawyers have to spend far more hours on a case in practice. The fixed sum is too low, because in 87 percent of the cases, a legal aid lawyer works more hours per case than is set in the fixed sum. Because of the relatively low wage and a tight job market, this puts pressure on legal aid. If this does not change, it will become difficult to actually provide legal assistance to everyone who has the right to it.
Legal advice centres are voluntary organisations which provide low-threshold legal assistance. These legal advice centres are mostly operated by students. They gain practical and volunteer experience there during their degree programmes. Legal advice centres have already been fulfilling an important role in legal aid for decades. They came about in Utrecht in 1971, as a protest organisation. These law clinics or legal advice centres were addresses where the local residents could visit the law students for legal assistance. This is very beautiful and idealistic in a way, but it is still of course desirable that the government protects the right to legal assistance.