Dr Lora Briški, Assistant Professor at the Faculty of Law, University of Ljubljana and Research Associate at the Institute of Criminology at the Faculty of Law in Ljubljana
Introduction
Being able to understand the language used in criminal proceedings is essential for organising an effective defence and, ultimately, ensuring a fair trial. Defendants who do not speak the language of the criminal justice system are particularly vulnerable, as communication barriers may prevent them from meaningfully participating in the process (Moya 2022, 402; Salaets et al. 2023, 125). Drawing on statutory provisions and studies based on interviews with practitioners, this contribution examines defendants’ rights to interpretation and translation and highlights some of the challenges in the Slovenian legal system that may require further attention.
Legal landscape
On the one hand, the Slovenian legislature and case law have increasingly strengthened the protection of the defendant’s right to use a language they understand in criminal proceedings. This development has been influenced in part by European legislation and the case law of the European Court of Human Rights (hereinafter: ECtHR).
To implement the European Directive 64/2010/EU on the right to interpretation and translation in criminal proceedings (hereinafter: Directive 2010/64), Slovenia amended the relevant provisions in the Criminal Procedure Act (Zakon o kazenskem postopku, hereinafter: CPA). The 2014 amendment to the CPA defined the right to translation and interpretation more precisely and introduced a legal remedy for situations in which a translation or interpretation is either not provided despite being required or where its quality is inadequate.
However, the legislation did not explicitly establish a procedure or mechanism to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. The Directive obliges Member States to ensure that such a mechanism is in place.
Some years later, in 2018, the ECtHR found that the Slovenian courts had not adequately assessed the need for translation in the case in question, as required by the European Convention of Human Rights and the Directive. In the case Vizgirda v Slovenia (Application no. 59868/08), the ECtHR held that Slovenian authorities had violated the applicant’s rights by failing to ensure proper interpretation. The ECtHR stressed that state authorities, particularly courts, must, on their own initiative, regardless of whether the defendant requests it or not, determine whether the fairness of the trial requires appointing an interpreter to assist the defendant. This duty arises whenever there is reason to believe the defendant may not adequately understand the language of the proceedings. This could be the case, for example, if a defendant is a foreign national and does not reside in the country or if a third language is envisaged for interpreting. Before providing interpretation in such a third language, the court must assess the defendant’s interpreting needs, which can be tested in various ways, such as through a few open-ended questions. Crucially, the ECtHR emphasised that even a basic understanding of the language of the proceedings or of a third language into which an interpretation is available does not automatically preclude a defendant from receiving interpretation in a language they know well enough to fully exercise their defence rights. In other words, having a basic knowledge of a language may not be sufficient to defend oneself efficiently in this language before a criminal court.
Even after the ECtHR ruling, the CPA still does not specify the procedure and factors courts should consider when assessing a defendant’s need for language assistance. In practice, the courts take into account various factors to determine whether a defendant understands the language in which the proceedings are conducted (Mozetič 2023, 109). These circumstances may include previous statements made by the defendant during the proceedings and their place of residence (as considered in the case of the Supreme Court, no. I Ips 41643/2019) and the active participation in criminal proceedings conducted in the Slovene language of a non-citizen who has resided in Slovenia for more than three years and is married to a Slovenian citizen (as considered in the case of the Supreme Court, no. I Ips 16114/2013).
Practical challenges
On the other hand, while recent reforms have strengthened the right to interpretation and translation, the system is facing practical challenges – largely due to the growing influx of foreign defendants.[1] Studies conducted in 2023 and 2025, based on interviews with judges, public prosecutors, defence attorneys, and court interpreters, revealed several problematic spots in the Slovenian system.
A key issue is the increasing linguistic diversity combined with a shortage of qualified court interpreters. As a result, courts sometimes rely on ad hoc interpreters, who do not receive the same training as permanent court interpreters. This practice was made possible by the 2014 amendment, implementing Directive 2010/64. The amendment allowed courts to appoint another suitably qualified person proficient in the required language if no court interpreter is available for that language. Practitioners stress that the use of ad hoc interpreters can raise concerns about the quality and reliability of interpretation. One permanent court interpreter interviewed in the study from 2023 noted that some ad hoc interpreters do not fully understand their role and, instead of interpreting, end up giving legal advice to suspects (Završnik et al. 2023).
Moreover, logistical constraints, especially staff shortages in detention facilities, have led to increased reliance on videoconferencing during proceedings. When prisons are unable to arrange a transfer of a defendant to court for their trial, courts often conclude that remote participation of the defendant is necessary to ensure the proceedings can take place. This trend can further limit defendants’ ability to comprehend and participate in their trials. Preliminary data from our current research into the use of videoconferencing in Slovenian criminal proceedings indicates that the type of equipment often used in courtrooms displays only the participant currently speaking, rather than all participants, which restricts the defendant’s ability to observe and respond to the behaviour of other participants (Briški (in preparation))
The use of videoconferencing can also undermine the establishment of trust and effective communication between defendants and their legal counsel. In most cases, the attorney is physically present in the courtroom, while the defendant participates remotely via videoconference. This makes confidential and spontaneous consultation between them more challenging. Defence attorneys note that these concerns are even more profound when the defendant, participating in the trial remotely from a detention facility, is a foreign national who does not understand Slovene and is unfamiliar with the legal system. Such defendants may feel fearful, insecure, and isolated. In these situations, it becomes significantly harder to communicate – through both a screen and an interpreter – that the attorney will safeguard the defendant’s rights (Briški 2025, (in preparation)).
Conclusion
Slovenian criminal procedure provides safeguards for defendants who do not speak the Slovenian language, ensuring their right to translation and interpretation, which have been strengthened over the years. However, it is crucial that these rights are not only enshrined in legislation but also guaranteed in practice. The current reality – where a relatively small country is suddenly faced with a large number of foreign defendants speaking a wide range of languages, many of which the system has rarely encountered before – can therefore present a challenge for ensuring a fair trial. We will examine these challenges in greater depth in the next phase of our empirical study, which will include interviews with a broader range of practitioners.
Bibliography
Briški, Lora. 2025. ‘Remote Criminal Proceedings in Slovenia [Unpublished Data, Ongoing Research]’.
Briški, Lora. (in preparation). ‘From Rare Occurence to Routine Practice: Examining the Advantages, Disadvantages, and Practices of Remote Criminal Proceedings in Slovenia (in Preparation)’. In The Digitalisation of Defence Rights in Criminal Proceedings, eds Ashlee Beazley, Anna Mosna, and Michele Panzavolta.
Moya, Sarah. 2022. ‘Language Barriers and Cultural Incompetency in the Criminal Legal System: The Prejudicial Impacts on LEP Criminal Defendants’. Fordham Urban Law Journal 49(2): 402–33.
Mozetič, Polona. 2023. ‘8. Člen’. In Zakon o Kazenskem Postopku s Komentarjem, ed. Miha Šepec. Ljubljana: GV založba.
Salaets, Heidi, Katalin Balogh, Stefan Aelbrecht, Roxanna Dehaghani, Samantha Fairclough, and Lore Mergaerts. 2023. ‘The Right to an Interpreter: Taking Stock, Looking Forward’. In Vulnerability, the Accused, and the Criminal Justice System, Oxon, New York: Routledge, 125–44.
Završnik, Aleš, Lora Briški, Mojca Mihelj Plesničar, Iva Ramuš Cvetkovič, and Renata Salecl. 2023. Uporabnik 2030: Raziskava in analiza potreb ter pričakovanj uporabnikov sodnih storitev. Ljubljana: Inštitut za kriminologijo pri Pravni fakulteti v Ljubljani.
[1] According to the annual report of the Prison Administration, in 2024, there were 2,323 foreign inmates from 72 countries, 597 more than the previous year. Most were detained or serving sentences for organising illegal border crossings, which had the greatest impact on the overall average number of foreign inmates. Source: https://www.gov.si/assets/organi-v-sestavi/URSIKS/Dokumenti/Letna-porocila-/Letno-porocilo-2024.pdf
