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Roderick Van Dam, Head of Legal Service, Eurocontrol

Roderick Van Dam, Head of Legal Service, Eurocontrol

"We need equilibrium between aviation safety and justice"

The relationship between those responsible for the propagation of aviation safety and those responsible for the administration of justice is a delicate one. These are two distinct worlds that seldom meet. One is by nature international, dynamic and sensitive to safety; the other is by nature national, resistant to change and sensitive to the rule of law. Little wonder their interaction (or, more correctly, the lack of it), generates difficult and passionate discussion.

Pilots and controllers are professionals. Although nobody can claim automatic criminal immunity in any civilised country, a number of cases raise questions on the policy and motives behind some criminal prosecution and court cases.

Accidents and serious incidents are often the result of a series of events that lead to disaster. When human mistakes are involved, they can often be labelled fairly as “honest” mistakes that would not qualify as criminal behavior.

And here lies the root of the issue: who will determine whether an honest mistake was made by a qualified professional acting in a responsible manner or whether this was a clear case of gross negligence, wilful misconduct, or criminal intent—to use just a few of many legal terms for criminally reproachable behavior. The person making that decision cannot be a chief pilot or a control room supervisor. That call can only be made by a judicial professional: a prosecutor and ultimately a court of law. 

The key is what happens next. A qualified criminal investigator or prosecutor must assess whether the actions leading to the incident warrant further steps, such as investigations or indictment. A number of high-profile accidents and serious incidents have resulted in criminal investigations and proceedings, and have led to strong concerns from the aviation and air traffic management community about the criminalization of aviation. Events have also shown that further complications could arise as a result of public and media pressures that generally accompany any crash or serious incident with the associated “search” for a guilty party. Constant improvement in safety performance depends on the unhindered cooperation of all actors in the industry. That cooperation is understandably chilled by the threat of potential criminal prosecution.

Discussion of the criminalization of aviation incidents and accidents shows the concerns about the intrusion by law enforcement in the all-important effort to enhance safety in aviation. It also reflects a tendency to use criminalization as the epitome of misdirected and unwarranted activities by the judiciary to argue that the safety domain should be further protected from prosecutorial action. 

The problem is that invoking real or alleged criminalization of aviation incidents or accidents as a justification for protective legislative action does not work. What we need is equilibrium between two equally relevant goals: aviation safety and the administration of justice.

That is where the EUROCONTROL Just Culture initiative comes in with a “culture in which frontline operators 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.” 

Rather than trying to silence the Judiciary, focus in the EUROCONTROL Just Culture Task Force has shifted towards initiating a dialog between the national authorities concerned. A better understanding of the consequences of a judicial inquiry must be the starting point. In most states, national criminal legislation provides prosecutors with a level of discretion on the application of those laws; it is proposed that a clearer view of the safety consequences may actually influence their application. 

The Task Force has developed a Model Policy for National Prosecutors based on UK and Dutch precedents that introduce voluntary restrictions for the types of offences that would result in a criminal investigation after a serious incident or accident. Only incidents of evident gross negligence or wilful misconduct would be subject to further investigation. First results are encouraging: a realistic national prosecution policy would greatly enhance the reporting of incidents without undue fear of prosecution.

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