Committee of inquiry: Poch case did not involve de facto extradition
The fact that the Netherlands provided information in September 2009 on the air traffic movements of an Argentinian-Dutch pilot, Mr Julio Poch, did not constitute de facto extradition. At the time, former Minister of Justice Hirsch Ballin did not issue a ministerial order related to the Poch case, nor did he issue any personal assignments that had any connection to the investigation concerning Mr Poch. These are findings from the J.A. Poch File Committee led by Prof. A.J. (Ad) Machielse, LLM, a former advocate general of the Supreme Court.
Minister Grapperhaus of Justice and Security sent the Committee's report to the Dutch House of Representatives today. In January 2019, he announced that an independent investigation would be carried out to address existing questions on the role of Dutch authorities in the Poch case. The Committee conducted a thorough investigation into various aspects of the case and writes that it received a wealth of documentation, both on paper (generally older files) and from digital archives. A number of files were not encountered. Nevertheless, the Committee is of the opinion that it was able to establish ‘a sound reconstruction of the facts’.
The Committee has drawn clear conclusions on a number of important constitutional questions that arose in relation to this case. This is important for all of the parties involved according to Minister Grapperhaus, in particular for Mr Poch, who was remanded in custody for longer than anticipated. The lengthy case also took its toll on the reporting parties. The Committee makes clear that they were doing their duty as citizens and had acted in good faith.
The Committee inquiry focused on the period beginning with the report to the police in September 2006 that Mr Poch had made statements concerning the ‘death flights’, until the moment that Mr Poch was extradited to Argentina from Spain. The Committee inquiry did not concern the criminal proceedings in Argentina that are currently under appeal.
According to the Committee, the Netherlands was required to provide Argentina with as much legal assistance as possible, according to legislation such as the United Nations Convention against Torture. The position that, if Mr Poch were to be tried, this could best take place in Argentina, was based on a number of considerations:
- The Netherlands finds, in principle, that prosecution should preferably take place in the country where the offence was committed. This is where the victims and any of their surviving relatives will be, as well as where any evidence will likely be located.
- The legal options to prosecute in the Netherlands were limited, aside from the practical issues that gathering evidence would have involved.
- Argentina indicated that it preferred to prosecute Mr Poch itself and therefore issued requests for legal assistance to the Netherlands, which the Netherlands felt it had to honour.
The Committee's answer was negative to the question of whether the Netherlands had put a de facto extradition in motion by providing information to Argentina on Mr Poch's air traffic movements. The Committee determined that the Dutch state did not cause Mr Poch to deviate from his planned activity at the time: conducting a Transavia flight to Valencia according to schedule.
The Committee also addresses any influence purported to have been had by Minister Hirsch Ballin or the Royal House of the Netherlands. No evidence was found of a role played by the Royal House, aside from the intervention attempt mentioned in the report, which was alleged to have originated in circles in the vicinity of the Royal House – a telephone call from a stranger to the Dutch representative at Eurojust – which remained without consequences. The Committee was unable to further verify this incident. When an article was published in the Dutch magazine Vrij Nederland in October 2007, and after the resulting Parliamentary questions, Minister Hirsch Ballin indicated that he wished to remain updated on the matter. The Committee determined that he was maintaining his ministerial responsibility in doing so. The Minister did not issue any personal assignments that had any connection to the investigation concerning Mr Poch.