According to the press release of the ECtHR:

"The applicants are seven Venezuelan nationals who were born between 1974 and 2002.

They were intercepted on 11 April 2019 in the territorial waters of Curaçao, attempting to enter that country. They were arrested and taken ashore by the coast guard, then served with decisions refusing them entry and ordering their detention pending removal.

Four of the applicants were held in an immigration detention facility, while the other three were detained in the nearby ordinary prison.

They all lodged objections against the removal and detention decisions on 18 April 2019 when they obtained legal assistance. Their objections were ultimately rejected or declared inadmissible by the Minister of Justice of Curaçao.

On 23 April 2019, the European Court granted the applicants an interim measure under Rule 39 of the Rules of Court to prevent their removal to Venezuela. That measure was lifted on 25 June 2019 as all the applicants had been able to make requests under the domestic procedure and were no longer at risk of removal. On 19 July 2019, the Court indicated another interim measure under Rule 39 to the Government that it had to ensure that the applicants' conditions of detention were compatible with Article 3 of the Convention.

The applicants also lodged an application with the Curaçao Court of First instance requesting that their detention be suspended pending the main (“objection”) proceedings. This court's interim relief judge granted the request in respect of one of the applicants, who was a minor at the time, and ordered her transfer to a custodial institution for juveniles. The requests of the other applicants were refused. These applicants were released in August 2019.

Decision of the Court

The Court rejected as inadmissible the applicants' allegations of inadequate conditions under Article 3 and unlawfulness of detention under Article 5 because they had not raised those complaints in the main proceedings before the domestic authorities in Curaçao. The same applied to the applicants' complaint under Article 5 § 2 that they had not been informed in a language they understood of the reasons for their arrest. They had not therefore given those courts the opportunity to assess and potentially resolve the matter before it reached the European Court. See Q&A on “Exhaustion of domestic remedies”.

The Court also rejected as inadmissible the applicants' complaint under Article 4 of Protocol No. 4 that they had been issued identical removal decisions, noting that the domestic proceedings against these decisions were still pending when they had turned to the Court.

Article 3 (allegations of excessive use of force / investigation)

As concerned the incident on 9 June 2019, the Court noted that there was no dispute that unrest had broken out in the immigration detention facility where four of the applicants were being detained and that the authorities had responded by firing rubber bullets.

Incident reports drawn up by prison staff showed that two of the detainees had been hit by rubber bullets and treated by a nurse. The applicants also provided the Court with drawings of their injuries (because the prison authorities had not allowed their representatives to take photographs), showing bullet marks on two of the applicants, and the imprint of a shoe on the applicant who alleged that he had been kicked in the back.

Given that evidence, the Court found that those four applicants had been directly exposed to the firing of rubber bullets and therefore had an arguable claim of ill-treatment. The authorities had, moreover, been alerted to those allegations of ill-treatment because the applicants had lodged complaints with the Committee Overseeing Detainee Care. The authorities had therefore been under an obligation to carry out an effective investigation as to whether the force used had been justified and to identify those responsible.

However, to be effective an investigation had to be independent. That was not the case for the incident reports, which had been drawn up by prison staff, that is the same authority as those who had been the target of the investigation. Nor was there anything to show that the applicants had been able to participate in the investigation in any way.

The Court found that the investigation carried out had been neither effective nor independent, and therefore in violation of Article 3, in respect of those four applicants. The complaint of the three remaining applicants was rejected as inadmissible because they had not been present during the incident.

It found that there had been a further violation of Article 3 as concerned the use of force against three of the four applicants who had provided evidence of their injuries. None of that evidence had been contested by the Government who therefore had to show that resorting to the violence used had been made strictly necessary by the victims' conduct. However, the Government had failed to discharge their burden of proof. There had therefore been a violation of Article 3 in respect of those three applicants.

Article 5 § 4 (right to have lawfulness of detention decided speedily by a court)

The crux of the dispute under this Article was whether the applicants had been able, in practice, to make use of the remedy provided for in Curaçao, namely, to request the suspension of their detention orders pending the main proceedings. The applicants had had no access to legal assistance from 11 to 18 April 2019. Without such assistance, they could not reasonably have brought any legal proceedings to have the lawfulness of their detention speedily reviewed by a court from their places of detention. The Court found that the remedy of interim relief had not therefore been sufficiently accessible for the applicants during their first week of detention, in breach of Article 5 § 4."