38 is one of degree or intensity, and not one of primarily to detain people, the measures nature or substance.” The Court assesses may still constitute a deprivation of whether a practice amounts to detention on a liberty.96 The ECtHR also considers, for case-by-case basis, and in doing so accounts example, detention on grounds of the best for “a whole range of criteria such as the type, interests of the child to be a deprivation of 91 duration, effects and manner of liberty requiring justification. In these implementation of the measure in question.”92 cases, it is therefore necessary to examine In any case, it does not matter whether the whether a deprivation of liberty or deprivation of liberty takes place in an official restriction of liberty that requires detention centre or in another setting.93 justification exists, irrespective of the According to the ECtHR, a deprivation of authorities’ classification or intention.97 liberty can also exist even where the liberty is only deprived for a very short time. The name ⎯ The detained person’s subjective of such a measure is also irrelevant to whether perception is also not relevant: However, it constitutes a deprivation.94 For example, the intention and perception play an ECtHR has already considered police stop-and- important role in the context of the checks to be a deprivation of liberty if the proportionality test – i.e., whether the persons of concern fear arrest, imprisonment detention is justified.98 or at least punishment if they do not comply with police instructions. However, the length ⎯ Having the opportunity to leave a facility in individual cases and for and foreseeability of the deprivation of liberty specific reasons does not necessarily plays an important role in the distinction preclude a measure from being between a restriction or deprivation of classified as a deprivation of liberty: for liberty.95 example, the (interim) release of prisoners There are also several additional factors to does not change the classification of the consider when defining a practice as a overall circumstances as detention, deprivation of liberty: precisely because non-return is ⎯ The authority’s intent or stated purpose applicant’s placement in a care facility, the ordering authority intends to protect the ECtHR assumed a deprivation of liberty applicants or the population, and not even though the applicant was able to See e.g., ECtHR, Judgment of 06/11/1980, No. 7367/76 – Guzzardi, para. 93; Judgment of 07/01/2010, No. 25965/04 – Rantsev, para. 314. 92 Summarizing this, CJEU, Judgment of 28/07/2016 - C294/16 -PPU - J.Z., para. 51. 93 Cf. ECtHR, Judgment of 15/12/2016, No. 16483/12 – Khlaifia et al. Cf. ECtHR, Judgment of 06/11/1980, No. 7367/76 – Guzzardi, para. 90 et seq. Cf. ECtHR, Judgment of 12/09/2012, No. 10593/08 – Nada para. 229 et seq. 91 punishable. In one case concerning an is irrelevant: For example, even if the Cf. ECtHR, Judgment of 29/09/2009, No. 30471/08 – Abdolkhani and Karimnia, para. 126 et seq. 95 Cf. ECtHR, Judgment of 24/06/2008, No. 28940/09 – Foka, para. 74 et seq. 96 ECtHR, Judgment of 15/12/2016, No. 16483/12 – Khalifa et al, para. 71. 97 See e.g., ECtHR, Judgment of 27/10/2004, Nos. 39647/98, 40461/98 – D.L., para. 69 et seq. 98 See e.g., ECtHR, Judgment of 23/03/2016, No. 47152/06 – Blokhin, para. 164 et seq. 94 ‘Still detained and forgotten’ – Update on Detention Policies, Practices, and Conditions on Kos 2022/23