FOURTH SECTION
CASE OF Y.F.C. AND OTHERS v. THE NETHERLANDS
(Application no. 21325/19)
 
 
JUDGMENT
Art 3 (procedural) • Lack of effective and independent investigation into arguable claims of ill-treatment of migrants (applicants nos. 1-3 and 6) by State agents during an incident in the aliens’ barracks immigration detention facility in Curaçao
Art 3 (substantive) • Inhuman or degrading treatment • Use of force against applicants nos. 1-3 by State agents during the incident resulting in injuries not shown to have been strictly necessary to effect their transfer • State’s failure to discharge burden of proof given the absence of an effective domestic investigation to establish in detail the exact facts and circumstances of the incident • No information on the existence of domestic rules appropriately circumscribing the use of rubber bullets
Art 3 (substantive) • Inhuman or degrading treatment • No breach of Art 3 in respect of applicant no. 6 in the absence of evidence of injury resulting from the use of force by State agents
Art 5 § 4 • Impossibility for the applicants to access interim relief prior to obtaining the assistance of a lawyer during the first week of their detention • No information concerning the remedy of interim relief • In case-circumstances, given the absence of legal aid, the applicants could not reasonably have instigated legal proceedings for a speedy review of the lawfulness of their detention from their places of detention
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
21 April 2026
 
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Y.F.C. and Others v. the Netherlands,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Lado Chanturia, President,
 Jolien Schukking,
 Faris Vehabović,
 Lorraine Schembri Orland,
 Ana Maria Guerra Martins,
 Sebastian Răduleţu,
 András Jakab, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 21325/19) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 7 Venezuelan nationals, namely Mr Y.F.C. (“applicant 1”), Mr F.C.C. (“applicant 2”), Mr J.M.A. (“applicant 3”), Mr J.R.A. (“applicant 4”), Ms R.T.M. (“applicant 5”), Mr N.M.O. (“applicant 6”) and Mr C.V.S. (“applicant 7”), together referred to as “the applicants”, on 19 June 2019;
the decision to indicate interim measures to the respondent Government under Rule 39 of the Rules of Court;
the decision of granting the applicants’ request for their names not to be disclosed (Rule 47 § 4 of the Rules of Court);
the decision to give notice to the Government of the Kingdom of the Netherlands (“the Government”) of the complaints under Article 3 of the Convention concerning the conditions in which the applicants had been held in detention and the alleged use of force against the applicants during their detention; the complaints under Article 5 of the Convention concerning the lawfulness of the applicants’ detention and the question whether the applicants had been informed of the reasons for their arrest and had been able to challenge their detention in the courts; and the complaint under Article 4 of Protocol No. 4 to the Convention concerning the applicants’ exposure to collective expulsion, and to declare the remainder of the application inadmissible;
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the comments submitted by the Office of the United Nations High Commissioner for Refugees (the UNHCR), (“the third-party intervener”), who was granted leave to intervene by the President of the Section (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). Having deliberated in private on 31 March 2026,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicants were among a larger group of people found on board a small boat (a “lancha”) in Curaçao territorial waters on 11 April 2019, attempting to enter that country. They were then arrested by the coast guard and taken ashore, where they were detained and served with decisions refusing them entry and ordering their detention and removal. The applicants complained that these decisions and orders, as well as the circumstances of their ensuing detention, violated their rights under Articles 3 and 5 of the Convention and Article 4 of Protocol No. 4 to the Convention. They also complained under Article 3 of the Convention that the force used by officers during an incident in the prison had been disproportionate. THE FACTS
2. The applicants were represented by Ms. G.C.A. Scheperboer-Parris and Mr. B.W. Scheperboer, lawyers practising in Willemstad, Curaçao. 3. The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs. 4. The facts of the case may be summarised as follows. I. DENIAL OF ENTRY, REMOVAL DECISION AND DETENTION DECISION
5. On 11 April 2019 the Minister of Justice made individual decisions in respect of all the applicants. He found that the applicants had entered the territorial waters of Curaçao on a small boat; that applicant 1 had previously been banned from Curaçao for a period of 3 years; that they had no means of subsistence; that their stay in Curaçao was in breach of the immigration legislation; that they did not fulfil the conditions for staying in Curaçao as tourists and they were therefore to be considered as undesirable aliens; and that in view of the foregoing it could be objectively and reasonably feared that they constituted a danger to public order. The applicants were therefore denied entry to Curaçao and would be removed at the latest on 11 May 2019, and they would be kept in detention to ensure their departure. Three‑year entry bans were also imposed on all the applicants. These decisions were written in Dutch, except for the decisions served on applicants 2, 5 and 6, which contained a translation of the sentence concerning the entry ban of three years in English, Creole and Spanish. The legal basis for these decisions was Article 19 §1 sub a, §2 and §3 of the National Ordinance on Admission and Expulsion (“Landsverordening toelating en uitzetting”, ‘LTU’, see paragraphs 41-42 below), and section 2 §4 of the Admissions Decree (“Toelatingsbesluit”, see paragraph 44 below). The decisions included the information that an objection could be lodged with the Minister of Justice, or an appeal could be lodged with the Court of First Instance within six weeks of the date of the decisions, but that neither would have automatic suspensive effect, and the applicants would have to leave Curaçao to await the outcome. 6. Applicants 1, 2, 3 and 6 were detained at the ‘barracks for aliens’, (“Vreemdelingenbarakken”), an immigration detention facility located right next to – but outside the fence of – the ordinary prison Sentro di Detenshon i Korekshon Kòrsou prison (“the SDKK”). Due to the lack of capacity in these barracks for aliens, applicants 4 and 7 were detained at the SDKK, as was applicant 5, who was a minor at the time, in the female section of SDKK. 7. On 12 April 2019 the applicants who were being held in the SDKK went on hunger strike as a protest against the conditions in which they were being held. This came to the attention of a local human rights organisation, which then alerted Ms. G.C.A. Scheperboer-Parris and Mr. B.W. Scheperboer, the applicants’ representatives (see paragraph 2 above), who were able to visit the applicants on 18 April 2019. 8. On 18 April 2019 the applicants’ representatives lodged (pro forma) objections (bezwaarschrift) with the Minister of Justice against the removal and detention decisions of 11 April 2019 (see paragraph 5 above). In these objections the applicants referred to Article 3 of the Convention as a ground for not being removed from Curaçao as they feared treatment in violation of that Article in Venezuela and stated that their rights as protected by Article 5 of the Convention and Article 4 of Protocol No. 4 to the Convention had been violated. II. RULE 39 PROCEDURE BEFORE THE COURT
9. Following the applicants’ request, on 20 April 2019, the Court decided on 23 April 2019, in the interest of the parties and the proper conduct of the proceedings before it, to indicate to the Government under Rule 39 of the Rules of Court that the applicants should not be removed to Venezuela and asked the parties questions about the facts of the case. 10. In reply, the Government submitted that, notwithstanding the formal requirement to seek protection upon arrival (see paragraph 40 below), the requests of all applicants for protection against treatment prohibited under Article 3 of the Convention – including those made later – were processed in practice. The Government asserted that remedies existed against decisions entailing refusal of entry and detention (see paragraphs 45-46 below). They maintained that immigration detention conditions complied with relevant standards, although the aliens’ immigration detention facility was being renovated. Reference was made to a judgment of 9 November 2018 in which the Court of First Instance in Curacao had found that the conditions of detention of asylum seekers in Curaçao were not so bad that detention should be suspended. 11. The applicants replied that they had been arrested in a hostile atmosphere by armed officers, questioned only about logistical matters, and issued with identical detention and refusal‑of‑entry decisions without any inquiry into their protection needs, despite several attempts to invoke Article 3 of the Convention. They emphasised that their objections lacked automatic suspensive effect, and that domestic interim relief had been financially inaccessible until UNHCR assistance had been provided. In Curaçao it was not possible, as it was before the Court, to apply for one interim measure for the whole group (which at that time consisted of 32 individuals) and, as the applicants’ representatives worked on a pro bono basis, they could not afford to pay the costs for 32 interim measure requests. However, their subsequent applications for domestic interim measures to prevent removal had been rejected for lack of interest following the Court’s indication under Rule 39 (see paragraphs 16 and 22 below). They contended that domestic remedies had now been exhausted and reiterated that the conditions of their detention fell short of the requirements of Article 3. 12. On 19 June 2019 the Court indicated to the Government under Rule 39 of the Rules of Court that the necessary measures should be taken to ensure that the applicants’ conditions of detention were compatible with Article 3 of the Convention. On the same date the Court received the applicants’ application forms. 13. On 25 June 2019 the Court, having reconsidered the requests in the light of the information received by the parties, decided not to prolong the interim measure indicated on 23 April 2019 to the effect that the applicants should not be removed to Venezuela. The interim measure, indicated on 19 June 2019, relating to the conditions of detention, was prolonged for the duration of the proceedings before the Court, while the applicants remained in detention. The Court further decided to declare inadmissible the complaint under Article 3 in conjunction with Article 13, lodged by the applicants, of the alleged ineffective procedure in Curaçao for obtaining protection against treatment prohibited by Article 3 of the Convention. The Court found that this complaint was premature, because no decision had yet been taken by the authorities in Curaçao on the applicants’ applications for protection. III. DOMESTIC PROCEEDINGS CONCERNING DETENTION
A. Judicial proceedings for suspension and interim relief
14. On 23 April 2019 the applicants lodged an application with the Court of First Instance in Curaçao, requesting the suspension of the applicants’ detention pending the objection proceedings (see paragraph 8 above). The applicants argued that their conditions of detention fell short of the standards required by Article 3 of the Convention because the male applicants were being held in an overcrowded facility, that they could not leave their cells, which were infested by various vermin, and could not take any physical exercise because their cells were too small. Applicant 5, the female minor, argued that she was held in the female wing of an ordinary prison among inmates who were detained on criminal charges. There were insufficient appropriate sanitary facilities for all the applicants and there was a lack of privacy. The applicants referred to reports of Amnesty International (2018) and the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) (2015). They also argued under Article 5 that their detention was not lawful as there had been no assessment or (judicial) review of whether it was proportionate. They further argued that the detention procedure had never been explained to them. In addition, the applicants requested not to be expelled to Venezuela pending the objection proceedings. 15. On 26 April 2019 the provisional measures judge visited the facilities where the applicants were detained. 16. On 30 April 2019, deciding on the request of applicant 5 (the female minor), the provisional measures judge suspended her detention pending the objection proceedings and ordered her release from the SDKK as from 7 May 2019. The provisional measures judge considered that there were reasonable grounds to fear that she would abscond given that her presence in Curaçao was irregular and that she had no fixed address, and that the detention order was in that respect not unlawful. However, the judge found that the interests of applicant 5, as a minor, in suspending her detention outweighed those of the authorities in continuing to detain her. In that connection the judge referred to the Court’s case-law on detention of unaccompanied minors, which said that it was only permissible where it was justified by weighty reasons, and also took into account the fact that applicant 5 was detained in the women’s section of an ordinary prison. To prevent applicant 5 from being exposed to extreme poverty and associated dangers such as exploitation, the authorities were ordered to provide for her as they would for any unaccompanied minor under the age of 16. 17. Noting further that there existed no accessible policy as regards immigration detention of unaccompanied minors, the judge urged the authorities to introduce such a policy as soon as possible, in which the point of departure should be that there must be compelling reasons for placing a minor in detention. Costs and expenses incurred for the interim measure procedure were awarded to applicant 5. 18. As regards the request of applicant 5 not to be removed to Venezuela pending the objection proceedings, the provisional measure judge noted that given the Rule 39 measure that had been imposed by the Court on 23 April 2019, she lacked the requisite urgent interest to obtain such a provisional measure. 19. On 13 May 2019, deciding in two separate rulings on the requests of applicants 1, 2, 3 and 6, who were detained in the aliens’ barracks immigration detention facility, and the requests of applicants 4 and 7, who were detained at SDKK, the provisional measures judge refused to suspend their detention pending the objection proceedings. 20. The judge considered that there were reasonable grounds to fear that they would abscond given that their presence in Curaçao was irregular and that they had no fixed address, and that the detention order was in that respect not unlawful. The judge further considered the conditions in which applicants 4 and 7 were detained at the SDKK and found that their cells seemed clean and only housed other irregular migrants. Those cells were however not physically separate from cells where inmates on criminal charges were detained. The sanitary conditions appeared to the judge to be appropriate, and applicants 4 and 7 were allowed out of their cell every day for two hours. The judge noted the dissatisfaction of applicants 4 and 7 at not being separated from inmates on criminal charges and ordered the authorities to create sufficient capacity elsewhere to detain irregular migrants. However, she concluded that the conditions of detention of applicants 4 and 7 did not amount to inhuman or degrading treatment, and, having weighed the interests at stake, found that their interest in suspending the detention did not outweigh the interest of the authorities to continue it. 21. As regards the conditions of detention of applicants 1, 2, 3 and 6, the judge noted that she had not been able to enter the aliens’ barracks immigration detention facility herself but had seen the inside through an opening in the wall. She noted that at the time of her visit nearly 40 men were detained in the section reserved for male irregular migrants, while the sleeping quarter of the aliens’ barracks immigration detention facility had room for 20 persons and was therefore rather crowded. She also noted that those 40 men were not allowed to go outside. However, she concluded that these circumstances did not yet amount to a violation under Article 3 given the duration of the detention, noting that it could not be ruled out that, should the period of detention be prolonged, there may well be a breach of Article 3. The judge ordered the authorities to ensure, as a matter of urgency, that the capacity of the aliens’ barracks immigration detention facility was not exceeded further and to allow the applicants to leave the facility to get fresh air every day. Having weighed the interests at stake, the judge found that the applicants’ interest in suspending the detention did yet not outweigh the interest of the authorities to continue it. 22. As regards their request not to be removed to Venezuela pending the objection proceedings, the judge found that the applicants, like applicant 5, lacked the requisite urgent interest to obtain such a provisional measure (see paragraph 18 above). 23. No appeal was possible against these decisions (see paragraph 46 below). B. Objection proceedings before the Minister of Justice
24. On 17 May 2019 the applicants’ representatives made further arguments in support of the objections that had been filed previously (see paragraph 8 above). She argued that the applicants’ detention was not lawful because their need for protection had not been taken into consideration at all and for that reason was arbitrary. She argued that the rights of applicant 5 as a child should have been the first consideration in deciding whether to detain her. However, the decision to deny her entry, detain her and seek her removal had not reflected those rights at all. She further argued that the applicants’ individual circumstances had been entirely disregarded in the domestic proceedings so far, and that their removal to Venezuela would therefore be in breach of Article 4 of Protocol No. 4 to the Convention. 25. Applicant 4 was released on 6 August 2019 after he indicated that he wanted to return to Venezuela (see paragraph 39 below). 26. On 13 and 14 August 2019 the Minister of Justice heard the applicants on their objections. 27. On 14 August 2019 all applicants who remained in Curaçao (see paragraph 39 below) were released from detention and ordered to report to the Curaçao immigration authorities on a weekly basis. 28. On 27 December 2019, the Minister of Justice rejected or declared the applicants’ objections inadmissible. The decisions included the information that an appeal could be lodged with the Court of First Instance within six weeks of the date of the decision. No appeals were lodged by the applicants. C. Supervision and custodial order in respect of applicant 5
29. Following the provisional judge’s decision of 30 April 2019 to release her from detention in SDKK (see paragraph 16 above), applicant 5 was put under a provisional supervision order (“voorlopig toezicht”) and a care order (“uithuisplaatsing”) and was appointed a guardian on 3 May 2019. 30. On 3 May 2019 applicant 5 was transferred to a custodial institution for juveniles JJIC Kara pa Solo (“the JJIC”). On an unknown date the representatives of applicant 5, who claimed it had been difficult to gain access to her, argued before the Court of First Instance to reduce the restrictions imposed on applicant 5 by the detention regime at the JJIC. The representatives claimed that the authorities had failed to consider less oppressive measures than internment in the JJIC although such alternatives were available as a local family had been found that was willing to look after her. 31. On 29 May 2019 the Court of First Instance placed applicant 5 under a supervision order (“ondertoezichtstelling”) because her development and/or health was threatened and decided that it was in the best interests of applicant 5 for her to remain in the JJIC. IV. INCIDENT OF 9 JUNE 2019
32. On 9 June 2019, the prison director decided that the detainees in the aliens’ barracks immigration detention facility had to be moved to the ordinary prison. When the officers entered the barracks and attempted to transfer the migrants, a scuffle broke out between them. Officers involved in the transfer fired rubber bullets (which are a type of kinetic impact projectiles). 33. Applicants 2 and 3 claimed they were hit by rubber bullets – which is a type of kinetic impact projectiles –, causing grave injuries and serious pain, while applicant 1 said he had been kicked in the back. According to the applicants, they resisted the transfer because they did not want to be detained with detainees on criminal charges in the SDKK. The applicants’ representatives did not have access to the applicants until 12 June 2019. The representatives observed that applicant 3 had 17 bullet marks or injuries, applicant 2 had 15 such injuries and a torn earlobe, and applicant 1 had a bruise in the form of the sole of a shoe on his back. The applicants’ representatives had been forbidden to take photographs or to take their mobile telephones into the detention facility to document the injuries and had therefore resorted to drawing the injuries. The Court was provided with that drawing. The applicants’ representatives had contacted the authorities at the SDKK for an incident report but had not been sent one. Independent medical authorities had not been allowed to visit the applicants. 34. On 13 June 2019 the applicants had submitted, through their representatives, a complaint by e-mail to a member of the Committee Overseeing Detainee Care (“Commissie Toezicht Arrestantenzorg Curaçao”). 35. The Committee replied to this email on 17 June 2019. It indicated that 3 members of the Committee had visited the management of the SDKK on 10 June 2019 and had gone to see the detainees who had been affected by the incident. During this meeting several of the detainees had shown the Committee members the injuries they had suffered. The Committee had then requested an incident report from the SDKK authorities and had also contacted the Minister of Justice of Curaçao but had not yet received any response. A copy of this e-mail exchange was provided to the Court. 36. An incident report was drawn up by the head of security of the SDKK, dated 18 June 2019. It described in detail how on 9 June 2019 a group of Venezuelan persons detained in the aliens’ barracks immigration detention facility had been found vandalising the facility, including damaging the metal bars on the windows, and so had had to be transferred to the SDKK to prevent their absconding. The Venezuelan detainees were verbally aggressive towards one of the guards, threatened to kill her and made it clear that they would not cooperate with this transfer. The head of security called for assistance from colleagues and the Curaçao Police Force (“KPC”). At that time the detainees had started wrapping clothes around their arms as protection, barricading the entrance to the aliens’ barracks immigration detention facility with mattresses and chairs, and spreading soapy water on the floor to prevent the prison authorities from entering. When the KPC officers arrived, a last, unsuccessful, attempt was made to speak to the Venezuelan detainees in Spanish, to calm them. After a final warning, the head of security heard approximately 3 loud bangs, after which she heard the authorities tell the detainees, in Spanish, to lie on the floor. When she then entered the area where the detainees were held, the situation was under control, with the detainees lying handcuffed on the floor. Two of the detainees had been hit by rubber bullets and were being treated by a nurse for their pain. All detainees were eventually transferred to the SDKK. The incident report concluded by saying that the force used was a necessary response to the aggressive behaviour of the Venezuelan detainees. 37. On 19 June 2019 the guard commander wrote a second incident report regarding the incident. It largely corroborated the incident report of the head of security (see paragraph 36 above), with more details of timings and the movement of the guards and security personnel. It also reported that the detainees had started trying to dislodge the iron bars over the windows, which would have enabled them to escape. It was noted that the guard commander and other guards had entered the aliens’ barracks immigration detention facility armed with riot shields and a rifle with rubber bullets, after it had become impossible to de-escalate the situation verbally. The Venezuelan detainees had thrown domino stones at the guards to prevent them from advancing into the detention facility. The guards then had decided to discharge their rifle with rubber bullets. An initial shot had been fired at the wall. This led to the Venezuelan detainees coming at the guards with broomsticks. A further shot had been fired at the detainees’ legs. The Venezuelan detainees continued their resistance, and one of them had thrown a chair at the guards. Two further, targeted, shots had been fired, and two of the detainees had been hit. Thereafter all detainees had lain down and had been handcuffed, after which they had been transferred to the SDKK. V. SUBSEQUENT DEVELOPMENTS
38. All applicants were able to formally apply before the Minister of Justice for protection against treatment prohibited by Article 3 of the Convention between July and August 2019. Subsequently, on 13 August 2019, applicant 5 withdrew her application. All other applicants received a rejection of their application. Only applicant 7 submitted an objection against this decision on 19 October 2022. 39. Applicant 4 left Curaçao on 6 August 2019. Applicant 5 returned to Venezuela in November 2019. RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW
A. Procedure to obtain protection under Article 3
40. Curaçao is not a signatory to the 1951 United Nations (“UN”) Refugee Convention. It is therefore not possible to apply for international protection as a refugee. However, as an independent country within the Kingdom of the Netherlands, it is bound by the Convention, and it is possible to obtain protection against removal on the basis of Convention obligations. The procedure then current for applying for protection (the so‑called “Article 3 of the Convention-procedure”) required applicants to apply for protection on arrival. B. Denial of entry, detention and expulsion proceedings
1. Country Regulation on admission and removal (Landsverordening toelating en uitzetting (“LTU”))
41. On the basis of the LTU, a foreign national who enters the country unlawfully may be placed in detention and expelled. It is possible to derogate from this in the situations listed in the Amended Instructions for the Governors on the application of the National Ordinance on Admission and Expulsion (see paragraph 43 below). 42. Article 19 of the LTU provides as follows:
“1. The Minister of Justice may expel from Curaçao:
a. persons who have entered the country in violation of the statutory provisions governing admission and expulsion; (...)
2. If, in the opinion of the Minister of Justice, the person concerned poses a threat to public policy, public order, national security or public morality or if, in the Minister of Justice’s opinion, there is a well-founded fear that the person will attempt to evade expulsion, he may be placed in detention to ensure that he can be expelled. 3. Expulsion and detention are effected by an reasoned order, which is issued to the person concerned. (...)ʺ
2. Amended Instructions for the Governors on the application of the National Ordinance on Admission and Expulsion (“Amended Instructions)
43. Sections 10.3 and 10.7 of the Amended Instructions read as follows:
“10.3 When a detention order may and may not be made. A detention order may be made only if there is no reasonable alternative. Detention must be necessary in the interests of public order, public policy or national security. The principle of proportionality entails that a detention order may be made only if it has been established that a milder means of control, such as reporting to the authorities or the surrender of the person’s passport, will not suffice. With regard to the question of whether detention should be ordered, a decision to that effect will, in general, be justified if, without it, the foreign national will almost certainly evade expulsion. It follows that detention may be warranted if there are specific indications that, for example:
• the foreign national intends to go into hiding; or
• the foreign national has refused to assist in efforts to establish his identity; or
• the foreign national has evaded the supervision of the immigration authorities; or
• the criminal record of the foreign national gives reason to suspect he will attempt to flee; or
• the foreign national has provided incorrect or contradictory information. In the following situations, a detention order may not be warranted:
• private individuals or organisations considered reliable have been found willing to provide accommodation and act as guarantor for the foreign national while a decision on expulsion is being considered or where the foreign national cannot be expelled;
• there is no prospect of expelling the foreign national to any country, primarily because he does not possess or cannot obtain valid travel documents;
• the foreign national has a permanent or temporary place of residence in the Netherlands Antilles;
• a milder measure can be applied (for example a requirement for the foreign national to report to the authorities or to surrender his passport) (...)
10.7 Lifting of detention order
The detention order will be lifted if:
a. the foreign national is expelled from the Netherlands Antilles to a country where his admission is guaranteed;
b. the court lifts the detention order;
c. the Governor or an official authorised under article 19, paragraph 4 of the LTU lifts the detention order for another reason (for example, because of health concerns or other compelling reasons of a humanitarian nature).”
3. Admissions Decree
44. Section 2 §4 of the Admissions Decree provides:
“(...) Entry can be refused to tourists who are considered undesirable or they can be denied a continued stay in the Netherlands Antilles by or on behalf of the Minister of Justice. The decision is not open to judicial review.”
C. Remedies
45. Remedies against decisions of administrative authorities are laid down in the National Ordinance on Administrative Procedure (“Landsverordening houdende regels betreffende de adminstratieve rechtspraak”, “LAR”). The relevant provisions are cited below. CHAPTER 2: The appeal
Section 7
“1. Natural persons or legal entities whose interests are directly affected by a decision can lodge an appeal for judicial review of this decision with the Court of First Instance.
...”
CHAPTER 3: Proceedings at first instance
Section 17
“1. To submit a notice of appeal, the clerk of the court shall impose a court fee [...]
2. A natural person may be exempted from payment of the court fee referred to in the first paragraph. To that end, he must submit to the Court of First Instance proof of lack of financial resources [...]
3. The Court of First Instance may grant an interim exemption to a natural person who is exempt from the duty referred to in the first paragraph but is unable to provide proof of lack of financial resources in a timely manner. 4. If provisional exemption is refused, the petitioner must pay the full court fee. As soon as proof of lack of financial resources has been submitted by the petitioner and he has been granted exemption on the basis thereof, the amount paid shall be repaid to him by the clerk of the court as soon as possible.
...”
Section 50
“... 4. If the Court of First Instance upholds the appeal, it may order the administrative authority to adopt a new decision or to take other action in accordance with the judgment, or it may rule that the judgment shall replace the annulled decision or the annulled part thereof. The Court may set a time limit for the adoption of a new decision or the performance of another act.”
“5. If the Court of First Instance upholds the appeal, it may, where there are grounds for doing so, order that compensation be awarded at the expense of the government authority designated in the judgment. If the compensation is awarded at the request of the party itself, that party shall be deemed to have waived its right to claim damages under other statutory provisions.
...”
CHAPTER 4: Administrative review
§ 1. Review at the request of the Court
Section 54
1. If Section 55 has not yet been invoked, the Court may, at any stage prior to the public hearing of the appeal, forward the appeal to the administrative authority that issued the contested decision, together with a reasoned request to state, within a period to be set by the Court, whether it is prepared to reconsider the decision. 2. If the reply to the request referred to in the first paragraph is negative or is not received within the specified time limit, the appeal shall be heard by the Court. 3. If the response to the request referred to in the first paragraph is affirmative, the appeal shall not be considered by the Court. [...]
4. If the Court does not accept the appeal for the reason referred to in the third paragraph, it shall notify the appellant thereof without delay.
§ 1. Review following an objection
Article 55
“The persons referred to in Section 7, paragraph 1, are authorised to lodge an objection with the administrative authority that took the decision, and to lodge an appeal for judicial review referred to in Section 7, first paragraph, only after the administrative authority has decided on the objection.”
Section 68
“1. The administrative authority shall base its reconsidered decision on the notice of objection [...] and the matters raised during the hearing as recorded in the record. 2. The decision shall state the grounds on which it is based and shall replace the contested decision.”
CHAPTER 5: Further appeal
Section 75
“1. Any party may appeal to the Joint Court of Justice of Aruba, Curaçao and Sint Maarten and of Bonaire, Sint Eustatius and Saba against judgments of the Court of First Instance [...].”
CHAPTER 6: Special procedures
§ 3. Suspension and interim relief
Section 85
“1. A decision against which an appeal has been lodged with the First Instance Court, or in respect of which an administrative review is taking place as referred to in Chapter 4, may, at the request of the appellant or the party affected, be suspended in whole or in part by the First Instance Court on the ground that the implementation of the decision would cause disproportionate disadvantages on him in relation to the interest served by the immediate implementation of the decision. At his request, interim relief may also be granted to prevent a disproportionate disadvantageous impact referred to in the first sentence.”
Section 88
“Suspension immediately suspends the effect of the contested decision.”
Section 91
“The suspension and interim relief shall lapse as soon as the First Instance Court has given judgment on the appeal, unless the First Instance Court’s decision specifies an earlier date.”
46. No appeal is possible against a decision by the Court of First Instance on an application for interim relief. 47. If a decision by an administrative authority is declared unlawful, a person can claim compensation in two ways. Firstly, a claim and award for compensation may be made in proceedings for the judicial review of the contested decision on the basis of section 50 of the LAR (see paragraph 45 above). Secondly, a claimant may hold the State liable in separate tort proceedings under the Civil Code. II. DOMESTIC CASE-LAW
48. On 30 September 2022, in civil proceedings, the interim measures judge of the Court of First Instance awarded compensation to a female applicant who had been held in insolation in immigration detention of SDKK to prevent her from being held together with inmates who were detained on criminal charges (ECLI:NL:OGEAC:2022:273). 49. In a judgment of 2 August 2023 the Court of First Instance found the continued immigration detention of a group of Venezuelan applicants to have been unlawful because the domestic authorities had failed to examine whether, after 6 months’ detention, there still existed a reasonable prospect of removal (ECLI:NL:OGEAC:2023:229). 50. On 30 July 2025 (ECLI:NL:OGHACMB:2025:194) the Joint Court of Justice for Aruba, Curaçao, Sint Maarten and of Bonaire, Saint Eustatius and Saba ruled that the Minister of Justice could not justify the detention of people who entered Curaçao unlawfully solely on the basis of their illegal entry, because Article 5 § 1 (f) of the Convention required a clear domestic legal basis and Article 19 (1) (a) of the LTU (see paragraph 41 above) only authorized removal, not detention. However, detention could be lawful under Article 19 (2) LTU if the Minister demonstrated a threat to public order or another statutory ground. The Joint Court further clarified that even where statutory grounds exist, detention must remain a last resort, requiring the Minister to assess whether a less severe measure would suffice and to inform the detainee that any special personal circumstances must be raised to avoid disproportionate detention. THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
51. The applicants complained that the use of force by prison guards and police officers against them during their transfer from the aliens’ barracks immigration detention facility to the SDKK on 9 June 2019 (see paragraphs 32-37 above) had been unnecessary and disproportionate. They further complained that there had been no effective and independent investigation into their complaints about this ill-treatment. Furthermore, they alleged that the conditions of detention to which they had been exposed in the aliens’ barracks immigration detention facility (applicants 1, 2, 3 and 6) and the SDKK (applicants 4, 5 and 7) from 11 April 2019 (see paragraph 6 above) until their respective release from detention (see paragraphs 16 and 27 above) violated their rights under the Convention. Applicant 5 made the same complaint as regards her detention at the JJIC (see paragraph 30 above). They relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Use of force by State agents in the incident of 9 June 2019
1. Admissibility
(a)   The parties’ submissions
(i)      The Government
52. The Government argued that the applicants had failed to exhaust domestic remedies as none of the applicants had made a report or claim to the domestic authorities about this event but had only raised it in the proceedings before the Court. (ii)    The applicants
53. The applicants disputed the Government’s objection by referring to their complaint submitted before the Committee Overseeing Detainee Care (see paragraph 34-35 above). (b)   The Court’s assessment
54. The Court notes that the complaint regarding use of force by State agents has been submitted on behalf of all applicants, but that only applicants 1, 2, 3 and 6, who were held in the aliens’ barracks immigration detention facility, could have been impacted by it. The Court thus declares this complaint, insofar as it relates to applicants 4, 5 and 7, manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention
55. With respect to applicants 1, 2, 3 and 6, the Court observes that the Government’s objection raises issues concerning the effectiveness of the investigation into the applicants’ allegations of unnecessary and disproportionate use of force by State agents and is thus closely linked to the applicants’ complaint under the procedural aspect of Article 3 of the Convention. That being so, the Court considers that the objection should be joined to the merits of that complaint and examined at a later stage (see Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 337, 24 July 2014). 56. The Court further notes that the complaints of applicants 1, 2, 3 and 6 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits
(a)   The parties’ submissions
(i)      The applicants
57. The applicants reiterated (see paragraph 33 above) that they had used civil disobedience as a way of protesting their detention, given that they had been deprived of any other means to challenge it. They said that the security guards had provoked them, by accusing them of wanting to escape and using physical force towards them, even though they were under the control of the authorities, who should have known that firing rubber bullets at point blank range would cause severe injuries. As a result of these actions, 3 of the applicants had suffered serious injuries: applicant 3 had 17 rubber bullet marks or injuries, applicant 2 had 15 such injuries and a torn earlobe, and applicant 1 had a bruise in the form of the sole of a shoe on his back. The applicants reiterated that no security guard or police officer had been injured or at risk of being injured, given that they were well-equipped and trained to deal with violent riots. The applicants referred to Bouyid v. Belgium ([GC], no. 23380/09, §§ 100 and 101, ECHR 2015) and argued that the force used against them had not been strictly necessary given the dominance of the security guards and special forces. They had notified the relevant authorities and the Committee Overseeing Detainee Care, but the authorities had failed to fulfil their legal obligation to diligently investigate the incident without arriving at hasty or ill-founded conclusions (they referred to Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, § 68, 30 September 2014). (ii)    The Government
58. The Government submitted that the migrants detained in the aliens’ barracks immigration detention facility had started to damage their unit. According to the prison security officers on duty, the detainees had told them that they would do everything to escape. The prison director decided that the detainees should be moved to Block 3 of the SDKK. The detainees were informed in Spanish, their native language, that they would be moved to another part of the prison due to the damage in their facility. The detainees protested their transfer and since efforts to negotiate were unsuccessful, the police were called for assistance. With reference to the incident report of 19 June 2019 (see paragraph 37 above) the Government conceded that two detainees had been shot with rubber bullets and had been attended to by the nurses on duty after the unrest had been put down. Any injury sustained by the applicants had been the result of their own aggressive and violent behaviour. The force employed by the prison guards and police had been necessary to respond to the detainees’ aggressive conduct, and to prevent further injury and damage. The actions of the guards and police had not exceeded what was proportionate in the circumstances and therefore did not violate Article 3. The Government reiterated that they were not aware of any complaint having been made or of any domestic remedy having been used by the applicants in relation to these allegations. (b)   The Court’s assessment
59. The Court observes that the applicants’ complaints regarding the incident of 9 June 2019 concern both the substantive and procedural aspects of Article 3 of the Convention. It is sensitive to the subsidiary nature of its task and recognises that it must be cautious in taking on the role of a first‑instance tribunal of fact where this is not made unavoidable by the circumstances of a particular case. The Court therefore considers it appropriate to firstly examine whether the applicants’ complaints of ill‑treatment were adequately investigated by the authorities (compare Panayotopoulos and Others v. Greece, no. 44758/20, § 102, 21 January 2025, and the references cited therein). (i)      Procedural aspect of Article 3 of the Convention
(α)     General principles
60. The general principles concerning the effectiveness of an investigation into allegations of ill-treatment or injury have been summarised in El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, §§ 182-85, ECHR 2012). In particular, where an investigation of serious allegations of ill-treatment is required under Article 3 of the Convention, it must be both prompt and thorough. That means that the authorities must act of their own motion when a matter comes to their attention and must always make a serious attempt to find out what happened. They should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation should be independent of the executive. Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms. Furthermore, the victim should be able to participate effectively in the investigation in one form or another (ibid.; Bouyid, cited above, §§ 116-19; and Husayn (Abu Zubaydah), cited above, § 480). (β)      Application of the above principles to the present case
61. It is undisputed that during the incident on 9 June 2019 two detainees were hit by rubber bullets and that a nurse gave them medical treatment afterwards. These events were described in the two reports of the staff of the prison submitted by the Government (see paragraphs 36 and 37 above). The applicants have submitted drawings of the injuries sustained by applicants 2 and 3 from being hit with rubber bullets (see paragraph 33 above). Those drawings also show that applicant 1, who claimed that he had been kicked in the back, was left with the imprint of a shoe sole on his back. The Court finds that these applicants, as well as applicant 6 who was also detained at the aliens’ barracks immigration detention facility at the time of that incident and was directly exposed to the firing rubber bullets at point blank range (see paragraph 57 above), therefore had an arguable claim of treatment infringing Article 3 suffered at the hands of State officials. 62. The applicants submitted documentation to the Court demonstrating that their representatives had lodged a complaint with the Committee Overseeing Detainee Care on 13 June 2019 (see paragraphs 34 and 35 above). Accordingly, the authorities were alerted about the alleged ill‑treatment and, consequently, were under an obligation to ensure that an effective investigation was carried out which was capable of leading to findings of fact and to a determination of whether the force used was justified in the circumstances, and capable of identifying and – if appropriate – punishing those responsible (compare Jeronovičs v. Latvia [GC], no. 44898/10, § 103, 5 July 2016). 63. The Court finds that the documents in the case file do not show that there was an effective and independent investigation into the applicants’ allegations of ill-treatment. In that connection the Court notes that the official incident reports, drawn up by head of security of the SDKK (see paragraph 36 above) and the guard commander (see paragraph 37 above), provide relevant information on the incident, but do not qualify as an effective investigation given that such an investigation must be carried out by an authority independent from those targeted by it (see Alikaj and Others v. Italy, no. 47357/08, § 96, 29 March 2011; Bouyid, cited above, § 118 and contrast Hentschel and Stark v. Germany, no. 47274/15, § 85, 9 November 2017). Furthermore, there is nothing to show that the applicants participated in the impugned investigation in any form. Having regard to the domestic authorities’ duty to undertake investigations into such incidents of their own motion, coupled with their inability to demonstrate any substantive and sufficient action despite the applicants’ complaint to the Committee Overseeing Detainee Care, the Court dismisses the Government’s preliminary objection on non-exhaustion of domestic remedies (see Jeronovičs, cited above, § 124).

Outcome for Article 5: violation