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Accordingly, empirical research carried out since the opening of the CCACs by different organizations and in different years consistently includes testimony by residents of the
CCACs that describe the centres as prisons. Residents refer to the high level of security,
the regular checks and controls and the impossibility of leaving the centre. While the
European Commission underlines the open character of the centres and argues that
fences are only necessary to ensure security and safety of residents and staff,3 residents
and NGO’s underline the interferences with residents’ autonomy and freedom. The next
section will analyse the legal framework as regards such interferences with personal
liberty.
Deprivation of Liberty in Human Rights Law
Research cited above showed how the Greek reception centres are experienced by their
inhabitants as prisons. This raises the question whether they are also legally qualified as
such. Does the curfew measure, combined with the variety of serious surveillance measures and the impossibility to leave the island on which the centres are located, amount to
a deprivation of liberty within the meaning of Article 5 ECHR? This section analyses case
law of the ECtHR in order to examine how this Court would answer that question.
Relevant case law has been selected on the basis of a text search in HUDOC, the
Courts’ database4, and analysed using ‘classical case law analysis’ (Gerards et al.,
2023). The section ends with comparing that to the concept of detention as used by
other institutions.
The fundamental nature of Article 5 ECHR is often underlined by the ECtHR. For
example, in the Grand Chamber judgment in Buzadji v. the Republic of Moldova, the
ECtHR held (para 84):
Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual (…), and as such its
importance is paramount.
This paramount importance is visible in three strands of reasoning that, according to the
Court, run through its case law on Article 5 ECHR:
[T]he exhaustive nature of the exceptions, which must be interpreted strictly (…) and which
do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of
the Convention in particular); the repeated emphasis on the lawfulness of the detention, both
procedural and substantive, requiring scrupulous adherence to the rule of law (…); and the
importance of the promptness or speediness of the requisite judicial controls (under Article 5
§§ 3 and 4) (…).
Because of the strict and exhaustive nature of the exceptions (contrary to other ECHR
provisions) and the emphasis on the lawfulness of the detention and the promptness of
judicial control, it is relevant to examine the applicability of Article 5 ECHR to the measures imposed on asylum seekers in the Greek reception centres, even though these measures could also be examined in relation to other rights laid down in the Convention