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criminal litigation, and sanctions
against pilots and controllers in the aftermath
of accidents or incidents.
In setting international rules and recommendations
for the improvement
of safety, ICAO3 has been confronted
from a relatively early stage with the
Roderick van Dam, Head of EUROCONTROL Legal
Service, and Ann-Frédérique Pothier, a EUROCONTROL
senior legal expert, explain the role of judicial authorities
with respect to aviation safety and highlight the need to
reconcile aviation safety with the administration of justice.
need to “protect” aviation safety interests
from those parties that want access
to investigation results and safety
data with the goal of what ICAO calls
“apportioning blame or liability”.
This “divide” between international
safety rules and national criminal
law, and – to a lesser extent – public
information legislation, forms the
core of the difficulties encountered
in the aviation safety domain. It is
one of the main reasons why the
concept of “just culture” has been
introduced for aviation safety and air
traffic management.
Conflictin g
functions
In the aftermath of an accident, in
particular where there are injuries
and fatalities, criminal investigations
will, as a rule, be held. In Europe, as in
most other ICAO regions, the laws in
many States explicitly provide for joint
police/accident prevention investigations,
often establishing priority for the
police.
An initial investigation by the prosecution
after an accident should be
accepted as a given, in the expectation
that it will not interfere (excessively)
with the accident/incident safety investigations
stipulated in Annex 13 to
the Chicago Convention, the purpose
of which is not to apportion blame or
liability but solely to prevent accidents
and incidents.
The key is what happens next. A qualified
criminal investigator or prosecutor
must assess whether under the
applicable criminal law the actions
leading to the accident/incident warrant
further steps (investigations or
indictment). A number of high-profile
accidents and serious incidents, such
as the mid-air collision over Überlingen
in Germany, the runway incursion
at Linate airport in Milan, Italy, the
mid-air collision in São Paulo, Brazil,
the Air France Concorde crash in Paris,
France, and the near-miss between
two Japan Airlines aircraft, did indeed
result in criminal investigations and
proceedings.
As stated above, these events have
prompted grave concerns in the aviation
safety domain, which need to be
put into context.
Although very rare, the misuse of law
enforcement processes following aviation
accidents and incidents should be
strongly condemned. However, it cannot
in itself be used as an argument for
exempting aviation professionals from
the administration of justice. Nobody
would deny the overriding need to ensure
the continuation and, where possible,
further enhancement of today’s
impressive aviation safety record.
It takes two to tango
Just culture
1- International
Federation of
Air Traffic
Controllers’
Associations
2- International
Federation of
Airline Pilots’
Associations
3- International
Civil Aviation
Organization
4- European
Aviation Safety
Agency
Skyway 53 Spring 2010 31
Nonetheless, the invocation of the
real or alleged criminalisation of aviation
incidents or accidents as a justification
for immunity for controllers,
pilots or other aviation professionals
is not an appropriate argument. What
needs to be achieved now is a balance
between two equally relevant
goals: aviation safety and the administration
of justice.
Just culture
The following description of just culture
in the aviation domain has been
developed in Europe: “A culture in
which front-line operators or others
are not punished for actions, omissions
or decisions taken by them that
are commensurate with their experience
and training, but where gross
negligence, wilful violations and destructive
acts are not tolerated.”
Efforts to introduce just culture are
not new. In specialised professional
areas where there is a risk of death or
injury, such as the medical sector, similar
initiatives are ongoing. In aviation,
ICAO, the European Union and EUROCONTROL
　
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