Flying in the Face of Criminalization

Sofia Michaelides-Mateou, Andreas Mateou

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317134671
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Two parallel investigations take place after every aviation accident: one technical, one judicial. The former must be conducted with the sole intention of making safety recommendations to prevent the recurrence of similar accidents. The judicial investigation, however, has the intention of identifying those parties that have been at fault and to apportion blameworthiness for criminal and civil liability. Consequently, this results in a predicament for those parties that have been identified as having played a role in the accident, a dilemma between not supplying information aimed at enhancing safety and preventing future accidents and, on the other hand, supplying such information which may possibly be used against them in subsequent criminal prosecution. The situation is compounded by inconsistent approaches between different legal systems; aviation professionals may find themselves faced with criminal charges in one country but not in another, and they may also be unsure as to whether statements given during the technical investigation could be used against them in a court of law. Aviation safety is, to a large extent, built upon the trust placed by pilots, ATCOs and other aviation professionals in the process of accident investigation. This book examines the growing trend to criminalize these same people following an accident investigation and considers the implications this has for aviation safety.

Chapter 1
Introduction

Following an aviation accident or serious incident, many complex legal issues may arise for the organization, the members of its board of directors, the accountable manager, post-holders, safety, quality and other managers, the airline pilots and engineers involved, the managers of air traffic control service providers and the air traffic controllers on duty at the time of the accident, the managers and inspectors at civil aviation authorities as well as the aircraft manufacturers and designers. Aviation professionals are being held accountable for any of their actions or omissions that contributed to or played a role in an aviation accident and are being criminally prosecuted for unintentional death.

Prosecuting air traffic controllers (ATCOs) in Greece following the Yakovelev-42 accident of 17 December 1997, Judge Peristeridou stated:

In order to be found guilty of manslaughter, in the case where the negligence of the accused is not intentional, in terms of Art. 302, para 1 of the Criminal Code the following elements must be present:

• the accused must not have exercised the required objective judgment and attention that the average reasonable man in the same circumstances would have exercised

• a person having the personal skill, knowledge and capabilities of the accused will have to have foreseen and to have taken appropriate steps to avoid the punishable result and

• there was a causal connection between the acts and/or omissions of the accused and the result.¹

It is clear that, based on the well-established legal principles of the duty of care and the standard of care required by the law of such professionals, aviation professionals who breach their legal responsibilities and duty of care face serious legal consequences. In cases where an aviation accident or serious incident involves loss of life, aviation professionals may face criminal charges in accordance with domestic law and be charged with, inter alia. involuntary homicide, manslaughter and interruption of air traffic. Professional pilots, ATCOs, engineers, post-holders, managers and other aviation professionals are thus being held accountable for their actions or omissions and are being criminally prosecuted for their contribution to or role in an aviation accident or serious incident.

Subsequent to an aviation accident or serious incident two parallel, but separate, investigations are conducted, namely the technical and legal investigation, each having a clear, specific but different purpose. In the legal sphere, redress normally takes the form of damages (compensation) or punishment (accountability) whereas in the aviation community and in the interest of safety, emphasis is given to causation and prevention.

The technical investigation is conducted in accordance with ICAO² Annex 13, which contains international standards and recommended practices for the investigation of aviation accidents and incidents. It is clearly stated that the sole purpose of investigating an aviation accident is to prevent future accidents and not to apportion liability. The cornerstone of such technical investigations is a ‘no blame’ approach. The sole objective of the investigation of any accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability (ICAO 1994). This approach is entrenched by both Annex 13 and EU Directive 94/56,³ which lays down principles governing the investigation of civil aviation accidents and incidents within the European Union. Both these legal instruments stipulate that the main objective of investigating an aviation accident is to undertake an investigation for the sole purpose of identifying all the circumstances that led to the accident, in order to facilitate safety recommendations to prevent similar accidents in the future. This technical investigation is non-punitive in nature, and the accident scenario and sequence of events leading up to the accident are derived from the facts collected. Conclusions are reached on the probable cause or causes of an accident, for the purpose of enhancing aviation safety.

The lack of specific rules from international conventions or other instruments on the actual process of conducting the investigation, specifically in relation to the extent and scope of the investigation, results in a lacuna. It is therefore up to each contracting State and its relevant investigating body, particularly the chief accident investigator, to determine the process of investigating aviation accidents as well as the depth of the investigation that will be carried out.

In addition to the technical investigation, a judicial investigation subsequent to an aviation accident is carried out in order to determine who was at fault or responsible for the accident, and to assign blame and apportion liability to the guilty party or parties. This is a punitive approach, normally focusing on a conclusion supported by the facts and evidence gathered during the investigation. This approach aims to satisfy the many different interested groups after an accident by allowing the injured party to obtain compensation by imposing civil liability, as well as satisfying society’s needs, by determining criminal blameworthiness, prosecuting those who have allegedly committed a crime, and holding them accountable.

Traditionally, the unique nature of the aviation industry coupled with the early development of technology, the limited knowledge of human factors, inexperience and restricted investigative means resulted in insufficient analysis of the causes of the accident. The judiciary played a limited role in the investigation of the causes of the accident and in identifying those responsible for the loss of life and damages that resulted. Rapid technological advancements such as the computer animation of the flight and the increased data that can now be captured by the digital flight data recorder (DFDR) and the organizational accident model have now allowed the accident investigation to identify with more certainty the latent and active failures within the organization as well as the factors that have contributed to the accident. As a result of both the advancement in the investigation of aviation accidents as well as the greater demand by modern society for accountability, the judicial authority has an increasing impact on the events subsequent to an aviation accident.

Our Perspective

Our involvement in the litigation proceedings and the criminal trial subsequent to three major aviation accidents, namely the Falcon 900B accident that occurred in Romania in 1999, the Yak 42 accident near Thessaloniki in 1997 and the Helios accident that occurred in Grammatiko, Greece, in August 2005, indicated to us that the findings of the official accident investigation conducted in terms of ICAO Annex 13, the purpose of which is to prevent accidents and not to apportion blame, was relied upon by the prosecution in their case against the accused as a main source of evidence.

A number of aviation accident investigation reports, particularly the causes that are listed as having probably caused the accident (termed ‘the probable cause scenario’), have become the basis for criminal action against aviation professionals. This emphasizes the degree to which the investigation and litigation process have become intermingled in a manner that might affect aviation safety, jeopardize the independence of the accident investigation, and lead to injustice.

The accident investigation report has been used in subsequent litigation against aviation professionals and this has been done in an inconsistent manner. Not only do different jurisdictions have different legal systems, the courts have different approaches to adopting the accident report or parts of it in criminal litigation against pilots, ATCOs, engineers and other aviation professionals. The inconsistent use of the official accident investigation, wholly or in part, by the prosecution authorities and the courts during the trial highlights the degree of intermingling between the litigation and the technical investigation process. The contradictory approach results in a perilous situation where pilots, for example, first, may be faced with criminal charges in one country but not in another and, second, will be totally oblivious as to whether statements given during the technical investigation and the final accident investigation report will be used against them in a court of law. It therefore needs to be asked whether justice would be better served by the establishment of an alternative body, having common rules and procedures specifically dealing with the criminalization of aviation professionals.

Aviation professionals may find themselves in a predicament. Should they supply information and assist the technical investigation of an aviation accident, or do they risk incriminating themselves? There are serious consequences to both. On the one hand, not supplying information which is aimed at enhancing safety and preventing future accidents may impede safety, but on the other, supplying such information may possibly result in it being used against the individual in subsequent criminal prosecution, affecting reputation and even liberty. The dilemma experienced by air crew, ATCOs, engineers and other aviation professionals is that of having to choose between not incriminating themselves and enhancing the safety of aviation. In this context, the issues of self-interest, potential litigation and accountability are accentuated, due to the increasing trend of prosecuting aviation professionals. The notion of trust is discussed, but the moral and philosophical issues that this dilemma creates have not been developed in the book. The practical implications are dealt with but it is recognized that a different perspective could offer other insights.

Many international aviation safety organizations and unions of pilots and ATCOs state adamantly that the criminalization of aviation professionals results in their being hesitant to report mishaps and errors and to participate in the technical investigation, and that safety is thus negatively affected:

Those [SabreTech] prosecutions caused us to take a hard look at the possibility that old types of information might also be lost to the accident investigator. For decades, we have relied on individuals to tell us what happened in an accident – and they usually, sometimes, reluctantly, did so. After the SabreTech prosecutions we feared that what would have been reluctance to co-operate will now become refusal. A pipeline accident in Bellingham, Washington, proved us right. A criminal investigation was immediately launched into the accident, and we have yet to talk to most of the individuals operating the pipeline when it ruptured in June 1999. As a result, serious safety issues and questions about prevention remain unanswered. (Hall 2000)

The two distinctly different investigations conducted in parallel following an aviation accident result in a dilemma for professionals over the manner and degree of their participation, and valuable safety information may be withheld as a result. This is causing increasing concern to unions of pilots, ATCOs and engineers (IFALPA, IFATCA, BALPA and PASYPI, among others), safety agencies and organizations such as Flight Safety Foundation (FSF), Eurocontrol and the International Society of Air Safety Investigators (ISASI), who consider that the trend in criminalization of parties involved in aviation accidents and incidents is impeding aviation safety. To this effect a joint resolution was issued in 2006 by the Flight Safety Foundation, the Civil Air Navigation Services Organization, the Royal Aeronautical Society in England and the Académie Nationale de l’Air et de l’Espace regarding the ‘criminalization of aircraft accidents’ and ‘the growing trend to criminalize acts and omissions of parties involved in aviation accidents and incidents’, stating ‘that information given voluntarily by persons interviewed during the course of safety investigations is valuable, and that such information, if used by criminal investigators or prosecutors for the purpose of assessing guilt and punishment, could discourage persons from providing accident information, thereby adversely affecting flight safety’ (Flight Safety Foundation 2006). In January 2010, the International Society of Air Safety Investigators (ISASI) added their signature to the Joint Resolution (Flight Safety Foundation 2010).

As a result of the above issues, the book will examine the basis of professional negligence resulting in the prosecution of pilots, air traffic controllers and other aviation professionals by determining the legal basis on which they are prosecuted. It will determine whether there are any inconsistencies in the various judicial systems that criminally prosecute aviation professionals. The methodology and processes of official accident investigations conducted in terms of ICAO Annex 13 and EC Directive 94/56 and the scope and level of the technical investigation will be examined, considering other possible limitations as well as any external factors that may adversely affect the investigation or its outcome. It will consider case studies where aviation professionals have been criminally prosecuted after a serious aviation accident or incident, analyse a number of aviation accidents and examine both the technical investigations and judicial investigation and the subsequent criminalization process. The implementation of ICAO Annex 13 will be reviewed to reveal any inconsistencies and gaps that might lead to suggestions for change and to investigate the intermingling between the official accident investigation and the judicial process. How the criminalization of aviation professionals may affect aviation safety will be examined, determining whether a standardized set of rules or a European aviation accident investigation body will better serve the purpose of an accident investigation by providing a uniform standardized process of investigation and discussing the feasibility of a permanent European aviation court or tribunal.

The book provides a chronological overview of cases in which aviation professionals were either criminally charged or convicted and sentenced to imprisonment subsequent to an aviation accident, which provides a comprehensive collection of cases and forms a resource in itself.

1 Multi-member first instance court, Thessaloniki, no. 20200, p. 631 (translated by the authors).

2 ICAO – International Civil Aviation Organization (ICAO), which was formed by the Chicago Convention in 1944.

3 Establishing the Fundamental Principles Governing the Investigation of Civil Aviation Accidents and Incidents 1994. Official Journal, L 319 of 12.12.1994.

Chapter 2
What the Black Box Cannot Tell You – Liability in Law

Aviation accidents have social, political and economic implications and draw great media awareness which ultimately directs attention to errors and omissions of certain parties and/or organizations and fuels public demand for accountability and the need to bring those responsible to justice. Reports of previous incidents in the organization involved increase the public’s suspicion that the organization’s priority was its financial viability and profitability, not safety; and when supported by evidence of poor safety overseeing by the National Aviation Authority, demands for resignation and political accountability create tremendous pressure on politicians who publicly announce that those responsible will be held liable for their actions.

‘Accountability’ refers to giving an account for one’s actions and is often used to denote responsibility, answerability, blameworthiness and liability. It is a concept that encompasses many forms of accountability such as, inter alia, moral, administrative, political, managerial, market, legal and professional (Jabbra and Dwivedi 1989). Instinctively, we believe that aviation accidents must have been caused by someone’s fault or wrongdoing: the party(s) or organization must be identified and blamed.

Legal accountability assigns responsibility for a legal wrong, which may be in the form of a violation of an individual’s rights or non-performance of a legal duty. Failure by a person or organization to meet the imputed legal responsibility paves the way for a lawsuit for damages as in cases where an airline is ordered to pay compensation to passengers or to the relatives of the deceased. Liability also applies to alleged criminal acts, making the defendant subject to criminal prosecution, conviction and punishment.

Legal liability is therefore the liability that a court imposes on a party for his acts or inactions (omissions) and for which the court will impose a form of redress, such as pecuniary damages in a civil matter and criminal sanctions in a criminal case. Subsequent to an aviation accident a number of aviation professionals may be faced with both civil and criminal liability. Civil actions may be initiated by the injured party or the relatives of the deceased in order to recover compensation, whilst criminal actions may be commenced by judicial authorities when the accident has resulted in death or in situations of violation of the regulations of EU Ops 1, provisions of the relevant national air navigation order and other applicable legislation.

Legal Theory

Legal liability arises from three general classes of legal wrongs:

• breach of contract for which financial compensation will be sought;

• tort, a civil wrong where a tortfeasor (wrongdoer) breaches a duty imposed by law and causes injury or damage to another person resulting in financial compensation;

• crime, contravening a law (statute), the consequences of which are generally paying a fine and/or imprisonment.

In some cases the law imposes strict liability without the need to prove fault by the wrongdoer, as in when manufacturers are held strictly liable for their defective products. There are also situations where one party may be held liable for the torts committed by another party, such as when an employer is held vicariously liable for the torts of its employees committed during the course of the employment.

There are two main branches of the law, namely civil and criminal. Civil law is concerned with individual’s rights and duties, which are enforceable by the individuals themselves. The purpose of civil law is to remedy the wrong and to compensate the victim for the damages suffered as a result of the wrong. Breach of contract and negligence (constituting a tort) are civil wrongs. Criminal law can be said to regulate the conduct of individuals in a society and is therefore concerned with wrongs committed against society at large. The purpose of criminal law is largely to punish the wrongdoer and to deter similar acts.

Even though the purpose of each of these two branches of law and their rules and procedures differ, it often happens that an individual’s action or inaction can give rise to both a civil and a criminal action. A pilot who flies his aircraft disregarding the rules of navigation, resulting in the injury of a passenger, may be faced with criminal charges brought against him by the S...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures
• List of Abbreviations
• List of Cases
• About the Authors
• Acknowledgements
• Foreword
• Preface
• 1 Introduction
• 2 What the Black Box Cannot Tell You – Liability in Law
• 3 The Greying of the Black Box – Aviation Accident Investigation
• 4 Knowing and Doing
• 5 The Notion of Intermingling
• 6 The State of Play
• 7 The Effect of Criminalization on Aviation Safety
• 8 The Way Forward
• 9 Cases of Prosecution of Aviation Professionals
• References
• Index