Abstract: ¹
The primary aim of the scientific study is to analyze the current state of the common means of communication in detention facilities across the Member States of the EU and also contribute to the analysis of legislation in the field of mutual verbal and non-verbal communication between detained third-country nationals and police officers within the detention facilities in selected EU countries, which has a significant impact on the prevention of misunderstandings and conflicts in the above-mentioned facilities with particular respect to protection of human rights and fundamental freedoms of the detained foreigners.
Methodology: Analysis and comparison of the respective legislative frameworks in selected EU countries and the European Court of Human Rights Case-law related to the violation of Article 5(2) regarding the right to language assistance.
Findings: The analysis of the respective legislative documents within the selected EU countries showed differences in interpretation and consequently also implementation of the right to language assistance that is guaranteed as one of the procedural safeguards in the context of protection of human rights and fundamental freedoms. Different interpretation and implementation of the right to language assistance prevents effective communication between police officers and third-country nationals detained in detention facilities and causes frustration on both sides, especially during the times of migration crises when the effective communication becomes one of the main tools in prevention of misunderstandings and conflicts. The list of common peculiarities experienced across the EU countries was made. The analysis of the European Court of Human Rights case law proved remaining problems in provision of language assistance causing unnecessary complications for the EU countries and affecting the human rights of the third-country nationals detained in detention facilities. ²
Value:
The value of the study lies in provision of general overview of the remaining problems experienced by both – the police officers representing the respective EU countries and third-country nationals arriving into the territory of the EU and being detained in detention facilities, resulting from different interpretation and implementation of one of the human rights – right to language assistance which is guaranteed as a procedural safeguard at the international and European level, and at the national level of the respective EU countries. By detailed analysis of the core legal documents and the European Court of Human Rights case law, the attention is drawn to the legal consequences for the EU Member States. To prevent the negative consequences, the areas of required amendments are pointed out.
Keywords: intercultural communication, EU, legal framework, human rights and fundamental freedoms, procedural guarantees, language assistance, detention facility, police, third-country nationals

Introductory Notes

Migration remains one of the highly discussed issues as not only the ongoing war conflict in Ukraine affects the global environment and triggers the rising in numbers of third-country nationals crossing the borders of the EU illegally, but the consequences of migration naturally affect the legislation, cultural or political environment of the respective Member States. Thus, individual Member States are approaching the migration in accordance with their national legislative frameworks and diverse cultural background in order to tackle the migration crisis as effectively as possible. To achieve this objective, the EU has adopted several legal instruments that were subsequently transposed into the national legislation of respective EU Member States. By doing so, a common framework to address migration and its consequences was created.

European Legal Framework for the Communication with Third-Country Nationals

The common framework for all EU Member States is primarily EU legislation, through which the EU seeks to address current issues concerning the stay of third-country nationals in the territory of the Member States and the establishment of rules for communication with them. In order to ensure respect for human rights and freedoms while providing guarantees for their observance, the EU has reflected Member States' efforts to improve the return management of illegally staying third-country nationals, in all its dimensions, with a view to lasting, fair and effective implementation of common standards on return and developed Directive 2008/115/EC, so-called "Return directive" which is the single document covering the key issues related to migration and asylum.
In case of detention of third-country nationals in detention facilities, in accordance with Article 5 of the European Convention on Human Rights (ECHR) ³ para. 2, "anyone arrested shall be informed without delay and in a language he understands of the reasons for his arrest and of any charge against him".⁴ Everyone shall have the right to communicate with the competent authorities in a language which he/she understands. The Member State is therefore required to provide an interpreter in order to ensure a standard procedure, i.e. the third-country national can understand and communicate in the interpreted language in all procedural proceedings. The legal regulation concerning standards and procedures in the field of communication in the framework of official contact with third-country nationals in all EU Member States as they are governed by common European legislation. In practice, however, the legislation in question is implemented with regard to specific conditions in individual countries. ⁵

The rules for official communication with respective authorities form part of the following documents:

• Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection;
• Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals;
• Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings;
• Regulation (EU) No 182/2011 of the European Parliament and of the Council 439/2010 of 19 May 2010 establishing a European Asylum Support Office;
• Regulation (EU) No 182/2011 of the European Parliament and of the Council Regulation (EC) No 640/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person;
• Commission Recommendation (EU) 2017/432 of 7 March 2017 on ensuring more effective returns in the implementation of Directive 2008/115/EC;
• Commission Recommendation of 1 October 2015 establishing a common "Handbook on Return" to be used by the competent authorities of the Member States in carrying out return tasks (C (2015) 6250 final).

The documents themselves clearly define the requirements to ensure proper communication with the competent authorities through an interpreter and additionally, the procedure for examining an application for international protection should normally give the asylum seeker at least:

• the right to remain in the Member State pending a decision by the determining authority;
• access to the interpretation service when submitting your case in case of an interview with the authorities;
• the right to be informed at crucial moments during the proceedings of his legal position in a language he/she understands;
• and the right to an effective remedy before a court in the event of a negative decision. ⁶

At the same time, according to par. 28 of this Directive, it is also necessary to ensure that "the basic communication necessary for the competent authorities to be able to understand whether persons wish to apply for international protection should be provided through interpretation." Also in the context of the provision of information and advice in detention facilities and border crossing points, individual Member States are obliged to provide "(…) interpretation to the extent necessary to facilitate access to the asylum procedure".⁷ As regards the procedure itself, all Member States are obliged to provide the same guarantees for applicants. Among the procedural guarantees mentioned under Article 12 para. 1 item (a) includes the need to inform applicants "(…) in a language that they understand or may reasonably be presumed to understand, (…)"⁸and subsequently, in accordance with Article 12 (2); 1 item (b) of Directive 2013/32/EU, it is important that applicants are provided with the services of an interpreter whenever necessary so that they can submit their case to the competent authorities. ⁹

Diversity in Implementation of EU Legal Framework Covering the Communication with Third-Country Nationals Across the EU Member States

Language mediation remains an important and very sensitive issue as it has a direct and non-negligible effect on communication between the national authorities of the individual EU Member States and it affects the destiny of the third-country national detained in the detention facility, in particular when applying for the asylum. In cases where a common language is absent, the interpretation of procedural acts in a language that can be reasonably assumed to be understood by the asylum seeker shall become a particular priority. The language barrier must never affect the human rights of third-country nationals and the decision of national authorities on the residence of third-country nationals in their territories.
Information on remedies should also be available in a language that the third-country national understands or can reasonably be presumed he/she understands. Whether the information is provided in written or oral form depends on the receiving Member State. In most cases, the information is provided in the form of leaflets or reference materials. The possibility of standardized templates would streamline the work of the administration and contribute to transparency, as well as significantly contribute to reducing the cost of interpretation services. It could also partially address the persistent problem of a lack of interpreters from/to lesser-used languages. Due to persistent problems related to the lack of competent and qualified interpreters, many countries have started to use audio/video conferencing to provide asylum seekers with the opportunity to communicate their needs. However, the use of this form of interpretation has its pitfalls, which include a lack of privacy, the absence of an interpreter at the place of detention, etc. In view of the fact that interpretation services are provided free of charge to third-country nationals and that Member States are responsible for all costs associated with these services, national authorities are responsible for selecting individual interpreters. Given that interpreters mostly rely on visual and audio stimuli to determine the meaning of translated speech, the use of technology is said to often suffer from poor sound quality or is interrupted during an interview and hearing is insufficient and frustrating for both parties, asylum seekers but also for the representatives of national authorities, especially when dealing with emotionally demanding situations.

The Member State is free to choose whether to provide a written translation of the relevant information or oral interpretation, provided that the context and content are clear to the third-country national and that he/she understands his/her current legal situation. The provision in Article 5 of the recast of the Reception Conditions Directive 2013/32/EU requires Member States to make all reasonable efforts to ensure a translation into a language that the person concerned actually understands. The lack of interpreters is not considered to be an objective reason for not fulfilling this right of third-country nationals. In cases of extremely rare languages for which there is an objective shortage of interpreters, Member States are required to provide at least general information sheets explaining the main elements of the standard form in at least five languages most commonly used by illegal immigrants entering the territory of a Member State. ¹⁰

Common Challenges Related to the Language Issues

The protection of the fundamental human rights guaranteed under the ECHR in relation to the language assistance is in practice interpreted on the basis of Member States needs and possibilities. The language-related provisions are drafted in a broader sense, thus giving the way to broader interpretation, e. g. being ´promptly´ informed can cover the time period from 10 minutes to 24 hours, also the very use of interpreter is also a subject to different approaches as it is not clear if the interpreter should assist the authorities from the moment of arrest or through the next stages of detention. And even the common framework of the language assistance is grounded in the ECHR and the EU Directives, the European Court of Human Rights (EctHR) may help to narrow down various interpretations from the Member States and adopt more unified way throught the language provision as the EctHR judgments function as a reference to the future court decision-making also at the national level of the respective Member States.
Challenges related to the language issues have been raised in a number of cases – till the beginning of the year 2024 there were 76 apparent violation of Article 5 §2. ¹¹ However, there were only few cases marked as the key cases. For the purposes of the present scientific study, the violations of Article 5 §2 related particularly to the following issues were analysed:
a) information in language understood; ¹²
b) information on charge;
c) information on reasons for arrest;
d) prompt information.

As the number of the judgments was significant, only the judgments that appear to be crucial in shaping the provision of language assistance were taken into account based on the thorough analysis of all 76 cases. The selected judgments also reappear in the Court´s Assessment section in the latter judgments as the respective judgments of key cases were cited as Principles laid down in the Court´s case-law. The following cases/judgments¹³ were considered as the core ones having impact on the language provision in terms of fundamental rights and freedoms entitled to third-country nationals arriving into the territory of the EU:

• the case of Čonka proti Belgicku, Judgment No. 51564/99 as one of the most significant cases on the issue of language and the provision of interpreting services, in which the ECtHR ruled that a single interpreter cannot provide interpreting services to a group of detainees. The judgment also established that a group of detainees cannot be considered as a single entity and therefore the need for an individual approach is binding not only for the purposes of legal aid but also for the provision of interpreting services.
• the case of M.S. v. Slovakia and Ukraine, Judgment No. 17189/11 points to the fact that the Slovak authorities did not ignore the fact that the applicant was a minor and did not provide him with access to an interpreter and a lawyer. On 23 September 2010, at 7.25 p.m., the applicant was questioned by the border police in order to establish his identity and the circumstances in which he had committed the offence of illegal entry into Slovakia, an offence of which he had been proven to have been guilty. The following day, on 24 September 2010, an administrative expulsion decision was issued, which also prohibited the applicant from re-entering the territory of the Slovak Republic for a period of five years. The decision was translated into Pashto (written form of the decision in the Pashto language). The applicant was given a translation of the expulsion guidelines into Pashto, which summarised the relevant Slovak legislation and procedures concerning the expulsion of third-country nationals entering the territory of the Slovak Republic illegally. The above-mentioned decision also contained an explanation of the available remedies against expulsion. The ECtHR ruled in favour of the Slovak authorities in this case, as the applicant was heard and the reasons for his detention were explained to him, including an explanation of the available remedies. The provided instruction was given by members of the Police Force in writing in the Pashto language, which the applicant could demonstrably understand. In the Ukraine case, the court found against the State in the absence of a written form of instruction given to the applicant in a language which he could demonstrably understand.
• the case of Saadi v. the United Kingdom of Britain, Judgment No. 13229/03, concerns the setting of a precise time frame for the provision of language assistance, as it has not yet been clear who is responsible for informing the detainee of the reasons for his/her arrest, i.e. a member of the Police Force or a legal representative? However, the subject of the judgment is also the form of providing information to the detained person - oral versus written form, as the obligation to provide evidence of the provision of information to a detained person is interpreted differently in the different jurisdictions of the EU Member States. However, on the basis of the judgment, it can currently be concluded that the delay of 76 hours in providing the relevant information (grounds for detention) to the detained person provided a reasonable ground for violating Article 5 para. 2. The judgment also laid down the maximum time frame available for the provision of information and thus also for the provision of language assistance.
• the case of Khlaifia v. Italy, Judgment No. 16483/12, the judgment regulates, inter alia, the form in which information is provided to third-country nationals who have illegally crossed the national borders of Greece. On the basis of a court decision, in the event of a return decision, or an entry ban decision and an expulsion decision, it is necessary to issue such decisions in writing, stating the factual and legal reasons, as well as information on available remedies. At the same time, Member States are obliged (following that judgment) to make available general information material explaining the main elements of the standard procedure in at least five of the languages most frequently used or understood by illegal migrants arriving in the Member State concerned. At the same time, detained third-country nationals must be provided with systematic information that explains the rules applicable in the establishment and sets out their rights and obligations. Such information shall include information on their authority under national law to contact selected organizations and authorities. At the same time, it is about covering communication with detained foreigners within the framework of unofficial contact.
• the case of J. R. and others v. Greece, Judgment No. 22696/16, judgment regulates the Member State's obligation to provide the third-country national with information material (information brochure) in a language that the detained foreigner understands and at the same time to inform without delay of the reasons for the arrest, while the responsibility for providing that information remains with the UN High Commissioner for Refugees, who assumes the obligation to inform newly admitted third-country nationals in hotspots about their rights and obligations and to indicate how to access the asylum procedure. According to the government, the same employees distribute information brochures of a legal nature, and subsequently foreigners who wish to do so can turn to lawyers for non-governmental organizations. In that judgment, the court also drew attention to the fact that all information was to be provided in plain language. All information should be provided to the detained foreigners "as soon as possible", but the arresting law enforcement officer may not provide it in full immediately. In this case, the court also determines the content of the information material. At the same time, the court notes that the content of the said material was not such as to provide sufficient information on detention, remedies, that the foreigner may contact a lawyer and a police officer and that he may object to the expulsion decision, etc. within 48 hours.

The rights concerned are obviously intended to represent minimum standards. The language-related assistance is in practice a subject of interpretation from the perspective of the individual countries. Through the case-law of the ECtHR it is shown how the provisions on language assistance can be developed to some extent. Frequently, the language issues are raised together with complaints under Article 5 and 6 and occasionally in conjunction with Article 14 (prohibition of discrimination). Even though the Court has rarely found a violation solely on account of language issues, the above-mentioned cases have given it the opportunity to lay down the basic principles in passages that represent a consolidation of the applicable case-law. ¹⁴

The Implications of the ECtHR Judgments on Provision of Language Assistance

The right to language assistance is one of the fundamental rights guaranteed by the ECHR and is also enshrined in secondary EU legislation and is therefore binding on all Member States. Thanks to the case law of the ECtHR, the provision of language assistance (i.e. interpretation and translation services) and the scope of their use is specified for future use. Questions concerning the form of interpretation and translation services provided for the purposes of the asylum procedure remain in the hands of the national authorities of each Member State and their preferences (oral form/written form), as long as they can be presented as evidence for potential ECtHR proceedings. Although the ECtHR has ruled in favor of a written translation, it also allows information to be obtained orally from the competent authorities if it can be provided as evidence for possible proceedings. Similarly, the right to provide information in a language understandable to third-country nationals arriving to the territory of the EU Member States is one of the procedural guarantees set out in the ECHR. However, it is a prerequisite to provide relevant information within 24 hours of the detention of a third-country national, as a person detained in a detention facility has the right to be informed of the reasons for his/her detention and this right is part of the procedural guarantees. The definition of the exact time frame for providing information for the above-mentioned purposes depends to a large extent on the language skills of the detainee, as according to the case law, the provision of information at the time of detention is preferred. In both forms of language assistance, information is provided in a language that the detainee understands and, in the vast majority of cases, the official language of the third-country national's country of origin is taken into account. The selection of an interpreter remains in the hands of the national authorities and is based on the national law of each EU Member State. A common framework for ensuring the quality of interpretation services and the qualifications of individual interpreters remains an unanswered question, as qualification criteria vary from one Member State to another. There are no explicit restrictions on the number of interpreters available for a group of third-country nationals (indefinite number of persons). Based on the judgment no. 51564/99 of 5 February 2002 in the case of Čonka v. Belgium, where one interpreter provides interpretation services for a group of persons, the Member State's obligation to assess each case individually is not respected. Given the perception of the third-country national, the individual approach and the physical presence of the person providing language assistance are therefore preferred, although the physical presence of an interpreter or translator is often difficult to achieve from the point of view of national authorities. However, the scope of the information provided should enable the third-country national to understand all the remedies they have at their disposal and their current legal status.

The relevance of the EctHR judgments lays in their power to impose a verdict on a Member State in case the violation of fundamental human rights and freedoms is proved and, thus, the consequences in the form of penalties are imposed on the Member States. By taking into account at least the framework for provision of language assistance to the third-country nationals arriving into the territory of the EU Member States, the possibility of not having a complaint lodged by the third-country nationals as injured party increases significantly and consequently helps to create a safer place for everyone within the Member State.

All third-country nationals detained in detention facilities face challenges that are directly related to their human and procedural rights and that need to be communicated on a daily basis. The language (as well as cultural) barrier does not alleviate the situation for third-country nationals detained in the territory of a Member State whose official language is not spoken by the parties involved in the process described above. Although the right to language assistance and the effective provision of intercultural communication is currently based on the level of legal aid, it still cannot enjoy institutional support in its application practice and is only gradually specified and interpreted thanks to the case law of the ECtHR.

Concluding Remarks

The provision of language assistance is currently a topical issue in many EU countries where third-country nationals have been detected and placed in detention facilities. While some countries have a well-functioning police training system for lesser-used languages, other countries face the problems in regard to the absence of a common language of communication, or the absence of quality interpreters, the absence of legislative regulation of communication between members of the Police Force and third-country nationals outside official communication. The issue of intercultural communication within the premises of detention facilities, where it is necessary to communicate everyday needs and instructions, whether by members of the Police Force or foreigners, therefore remains unresolved from the point of view of legislation. At this point, it is important to note that the proportion of non-official communication with third-country nationals in detention facilities is much higher than in official communication.

The diversity of approaches in addressing the regulation of communication with third-country nationals in detention facilities across EU Member States, which has a direct impact on language provision and respect for human rights of detained third-country nationals may help to address the issue of provision of language assistance in the future as it points at the possibility to make the unification of standard procedure in EU Member States possible as the summarization of problem areas in the foreign language communication affects all EU Member States (not just the countries studied), especially with regard to respect for and protection of human rights and fundamental freedoms to which the injured foreigners are referring, if they apply to a court against the Member State in which they were detained. Fundamental rights also include the provision of information in a language that incoming third-country nationals understand in order to ensure a standard procedure, i.e. the third-country national should understand and be able to communicate during all steps of proceedings.

Defining areas of divergent interpretation makes it possible to unify procedures and harmonize national legislation on the provision of language assistance in all EU Member States.

The scientific research increases the possibility of consolidating the applicable case law - the right of third-country nationals to obtain language assistance should be granted by Member States in a way that provides the person concerned with a concrete and practical opportunity to use it. Consequently, the possibility of a penalty by the EctHR allows the unification of provisions on language assistance as thanks to the EctHR judgments, it can be interpreted to a certain extent, especially with regard to the provision of interpretation services. ECtHR judgments provide an opportunity to set out the basic principles in passages that consolidate the applicable case law in all EU Member States.

Based on the summarized conclusions, the following can be recommended:

• to expand the possibilities of learning in the field of foreign languages within the Police Force, especially for Foreign and Border Police, if possible also in regard to the less widespread languages,
• implement an alternative form of communication in the form of pictures (pictograms) in detention facilities,
• further monitoring of intercultural communication in detention facilities is recommended in order to be able to take appropriate measures to make the communication with third-country nationals more efficient, e.g. extending the communication guide to other languages,
• consider training in intercultural communication for police officers to streamline not only the verbal but also the non-verbal part of communication,
• consider establishing cooperation with universities providing training in interpretation and translation programs and highlighting the urgent need for police practice to address the shortage of interpreters/translators, especially for less widely used and non-European languages,
• draw attention to the need for unified information materials in the languages of detained foreigners to provide basic legal advice, thus enabling Member States to avoid potential penalties from the European Court of Human Rights,
• consider the possibility of equipping the detention facilities with technological equipment enabling automatic translation/interpretation, which would help to resolve communication situations within the framework of unofficial communication,
• consider supplementing the subject of intercultural communication within the specialized training courses for members of the Police Force, and thus not only draw attention to the difficulties of working with foreign language within the police practice, but also offer preparation for resolving situations,
• draw attention to the possibility of harmonizing the way of ensuring intercultural communication within detention facilities, and thus contribute to the creation of a unified system at the national level.

Author: mjr. PhDr. Elena Nikolajová Kupferschmidtová, PhD., MBA
Finančná spravodajská jednotka, Prezídium Policajného zboru
ORCID: 0000-0001-6457-7448

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¹The scientific study is the outcome of the scientific-research task of the Academy of the Police Force in Bratislava, Slovakia registered under the title: Intercultural communication with third-country nationals in detention facilities (VYSK 241). The original scientific study was published by the author in Belugyi Szemle in 2022 under the title Communication with third-country nationals in detention facilities /DOI 10.38146/BSZ.SPEC.2022.2.4 In: Belügyi szemle: professional and scientific periodical of the Ministry of interior. – Budapest (Hungary) : Belügyminisztérium. – ISSN 2062-9494. – ISSN (online) 2677-1632. –Special issue 2 (2022), pp. 58-78.
²Respective part is cited from the original scientific study was published by the author in Belugyi Szemle in 2022 under the title Communication with third-country nationals in detention facilities /DOI 10.38146/BSZ.SPEC.2022.2.4 In: Belügyi szemle: professional and scientific periodical of the Ministry of interior. – Budapest (Hungary) : Belügyminisztérium. – ISSN 2062-9494. – ISSN (online) 2677-1632. –Special issue 2 (2022), pp. 58-78.
³Convention on Protection of Human Rights and Fundamental Freedoms is also known as the European Convention on Human Rigts and for the purposes of the present scientific study the European Convention on Human Rights (ECHR) will be used.
⁴Article 5 para.2 of the European Convention on Human Rights.
⁵NIKOLAJOVÁ KUPFERSCHMIDTOVÁ, E. (2020). Legal Framework for Communication with Third-Country Nationals: Study of Slovakia and Italy. Košice Security Revue, 2, 83–97.
⁶Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.
⁷Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.
⁸Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.
⁹NIKOLAJOVÁ KUPFERSCHMIDTOVÁ, E. (2020). Legal Framework for Communication with Third-Country Nationals: Study of Slovakia and Italy. Košice Security Revue, 2, 83–97.
¹⁰NIKOLAJOVÁ KUPFERSCHMIDTOVÁ, E. (2020). Legal Framework for Communication with Third-Country Nationals: Study of Slovakia and Italy. Košice Security Revue, 2, 83–97.
¹¹ HUDOC Database of the European Court on Human Rights – Violation of Article 5 para 2.
¹²The numbers in the brackets indicate the number of the judgments of the EctHR directly related to the violation of Article 5 §2.
¹³The judgments are publicly available through the website of the ECtHR and are part of Case-law section.
¹⁴Brannan, J. (2010). ECHR case-law on the right to language assistance in criminal proceedings and the EU response. https://eulita.eu/wp-content/uploads/files/TRAFUT%20Brannan%20ECHR%20ca…