25 2. Detention One of the most serious issues surrounding the quarantine practices on Chios is that it amounts to an unlawful and arbitrary detention of asylum seekers, a group that the ECtHR has found to be inherently vulnerable61. Both EU and international law require states to meet procedural preconditions when depriving persons of their liberty. A detention is considered a deprivation of liberty, triggering such preconditions. EU law lists specific procedural requirements for the detention of asylum seekers and the ECtHR has articulated what protections are given by the ECHR to all persons detained by member states. sector. Thus, the Court found that the sector where applicants were held constituted a “particular place” under Article 2(h) RCD where applicants were confined since it was of a “bounded or restricted location where people live physically isolated from the outside world”. The next issue is whether the applicants are deprived of their freedom of movement within the sector where they are confined. The Court found relevant that the applicants in the case were housed in a metal container with an area of at most 13 meters squared, that they were only able to go to a different sector twice a week for about one hour, that they could only leave the sector for asylum proceedings or medical appointments only when accompanied by police a. Quarantine as Detention or armed guards, that they could only contact EU asylum law defines detention as the “con- lawyers with preauthorization, and that they finement of an applicant by a Member State were under constant surveillance by police in- within a particular place, where the applicant is side or right outside the wall of the facility. deprived of his or her freedom of movement.” These facts, according to the Court, were akin to This law has been directly transposed into “an almost standard prison regime”, justifying a Greek asylum law. The CJEU articulated what finding that the applicants were deprived of constitutes a detention under the RCD defini- their freedom of movement. tion in a case about applicants held in a Hungar- In addition to applying the RCD’s definition of ian transit zone. detention, the Court finally looked at whether According to the CJEU’s interpretation, confine- there was a realistic possibility of leaving the fa- ment means to be “cut off from the outside cility voluntarily. It found that, even if appli- world, ‘within a narrowly bounded or restricted cants were theoretically allowed to physically location’”. The Court stated that whether the leave the facility, the consequences of leaving state confined an applicant was determined by (foregoing asylum, no real legal status, no free the “extent” of the sectors in which each appli- movement within the country) gave applicants cant is living. In that case, the Court found it dis- no real meaningful choice. Given the above fac- positive that the applicants were in a sector tors, the Court found that the applicants had separated by fences from other sectors and that been detained. applicants could rarely leave their assigned 61 ECtHR, Judgment of 21 January 2011, 30696/09, M.S.S. v. Belgium and Greece. ‘Quarantine of Asylum Seeker’ – A legal classification of the quarantine practice on Chios