Article citation information:
Balcerzak, T. An examination of aviation accidents in the context of a
conflict of interests between law enforcement, insurers, commissions for
aircraft accident investigations and other entities. Scientific Journal of Silesian University of Technology. Series
Transport. 2017, 95, 5-17. ISSN:
0209-3324. DOI: https://doi.org/10.20858/sjsutst.2017.95.1.
Tomasz BALCERZAK[1]
AN EXAMINATION OF AVIATION ACCIDENTS
IN THE CONTEXT OF A CONFLICT OF INTERESTS BETWEEN LAW ENFORCEMENT, INSURERS,
COMMISSIONS FOR AIRCRAFT ACCIDENT INVESTIGATIONS AND OTHER ENTITIES
Summary. The
sole purpose of air accident investigations should be the prevention of
accidents and incidents in the future without apportioning blame or liability.
Any civil aviation safety system is based on feedback and lessons learned from
accidents and incidents, which require the strict application of rules on
confidentiality in order to ensure the availability of valuable sources of
information in the future. Therefore, related data, especially sensitive safety
information, should be protected in an appropriate manner. Information provided
by a person in the framework of a safety investigation should not be used
against that person, in full respect of constitutional principles, as well as
national and international law. Each “involved person” in an accident or
another serious incident should promptly notify the competent investigating
authority of the state of the event. An “involved person” means the owner, a
member of the crew, the operator of the aircraft involved in an accident or
other serious incident, or any person involved in the maintenance, design,
manufacture of the affected aircraft or in the training of its crews, as well
as any person involved in air traffic control, providing flight information or
providing airport services to the aircraft in question, the staff of the
national civil aviation authority, or staff of the European Aviation Safety
Agency. The protection level of the organization (employer): employees who
report an event or replace applications following an event with regard to the
appropriate reporting systems should not face any prejudice from their employer
because of information provided by the applicant. The protection does not cover
(exclusions): infringement with wilful misconduct (direct intent, recklessness
infringement); infringement committed by a clear and serious disregard of the
obvious risks; and serious professional negligence of an unquestionably duty of
care required under the circumstances, resulting in possible or actual damage
to persons or property, or damage that seriously compromises the level of
aviation safety. All employees in the aviation sector, regardless of their
function, have safety-related duties, which are crucial to the security of the
entire civil aviation system. The safety of this system requires that as many
events that have or may have an impact on security in aviation are reported
voluntarily and without delay in order to conduct appropriate analyses and
increase the level of safety. “Just Culture” is the basic premise of the
effective functioning of event reporting required for all aviation
organizations in order to maintain and enhance safety levels. As safety
management is based on data, it is necessary to introduce appropriate
procedures, which allow for obtaining information, not only about the events
that have already occurred, but also about any other events that could
potentially cause hazardous conditions. All the procedures and rules of
operation relating to the policy of “Just Culture” should be constructed, so
that they not only comply with the provisions of applicable law, but are also
rational and understandable among all stakeholders, while ensuring a certain
level of comfort and confidentiality to those reporting events that affect
airline safety. Changes in the existing legal system should be established in
cooperation with all concerned institutions: law enforcement, including the
courts and public prosecution bodies, insurers aviation, the aircraft accident
investigation commission and other entities. Is it possible to reconcile the
interests of so-called “Just Culture” in the aviation industry with the
requirements of the above-mentioned institutions and traders involved in the
implementation of air transport and the exploration of the effects of aerial
surveys? The answers to this and similar questions will be fully addressed in
this article.
Keywords: aviation
accident; conflict of interests; Just Culture; accident investigation; safety
1. INTRODUCTION
Although air transportation is
widely recognized as the safest mode of transport, the aviation community,
including air accident investigators, continues to work relentlessly to make
our skies even safer. Annex 13 to the Convention on International Civil
Aviation: Aircraft Accident and Incident Investigation (10th Edition July 2010)
(hereafter referred to as “Annex 13”) specifies that the objective of the
investigation of an accident or incident is for the prevention of recurrence
and not for the purpose of apportioning blame or liability. The identification
of causal factors to prevent recurrence is best accomplished through a properly
conducted investigation. To meet these international obligations and to enable
a proper investigation of accidents or incidents to be conducted, the
government needs to put in place an appropriate investigating authority.
With very low accident rates in
recent decades, air transportation is widely recognized as the safest mode of
transport. The aviation community, including airlines, aircraft manufacturers,
maintenance organizations, air navigation service providers, airport operators
and safety regulators have been working closely to make our skies safer.
Amongst all the stakeholders involved in the aviation industry, there is a
particular group of aviation professionals who are seldom mentioned, yet they
contribute significantly to improving aviation safety. They are the air accident
investigators: the people whose job it is to determine the causes and
circumstances of air accidents and incidents, so that similar events can be
prevented in the future. One accident is one too many; whenever it happens, it
is bound to hit the news headlines around the globe almost instantaneously. The
idealistic aspiration of zero accidents, albeit statistically unachievable,
keeps everyone in the aviation profession focused on building an increasingly
safe aviation system.
In the international civil aviation
regime, Article 26 of the Convention on International Civil Aviation (Ninth
Edition 2006) stipulates that it is incumbent upon the state in which an
aircraft accident occurs to institute an inquiry into the circumstances of the
accident. Annex 13 further specifies that the objective of the investigation
into an accident or incident is for the prevention of recurrence, and not for
the purpose of apportioning blame or liability. The identification of causal
factors in order to prevent recurrence is best accomplished through a properly
conducted investigation.
To meet all these international
obligations and to enable a proper investigation into accidents or incidents to
be conducted, an appropriate authority needs to be put in place by the
contracting states. With continuous air traffic growth on a global scale, such
an air accident investigation establishment is essential and instrumental in
order to support the development of a safe and sustainable air transport
system. It should comprise, inter alia, the following key elements:
(1). Independence in its authority to investigate
Independence in its authority to
investigate is of the utmost importance. The organization responsible for
conducting air accident investigations must be strictly objective and totally
impartial, and must also be perceived to be so. It should thus be established
in such a way so as to be immune from political interference or pressure.
Some states, particularly those with
a large volume of air traffic and a wide range of aviation activities, have
achieved this important objective by establishing their own air accident
investigation authority as a separate statutory body, independent of its
regulatory civil aviation authority (CAA).
In many other states with relatively
small-scale aviation activities, it may not be practical or economically viable
to adopt such an arrangement. To achieve a certain level of independence in
accident investigations, these states may set up an arrangement whereby, in the
event of an accident or serious incident, they would mobilize a normally
dormant accident investigation team comprising qualified investigators, or even
appoint a separate commission, to conduct the investigation and report
independently to the appropriate authorities.
Given the dormant characteristics of
such a setup, few, if any, of the team or commission members would be fully
employed as accident investigators. Some members may be seconded from the state
regulatory agencies on a needs basis. In such circumstances, the clear
delineation of responsibilities and duty specifications must be included in the
appropriate legislation, emphasizing the importance of the independence,
impartiality and objectivity of an investigation. In the course of an
investigation, clear policies should also be established to ensure at least the
following:
-
No conflict of
interest exists between members of the investigation team and parties under
investigation.
-
Members of the
investigation team shall adhere to the objective of the accident investigation
in defiance of political and commercial considerations.
-
The investigation
team is to report directly to the head of the investigation organization, who
should report directly to the government/administration, independent of the
CAA.
-
The findings and
recommendations of an investigation team shall not be influenced or tampered
with by any other party who is not involved in the investigation.
Although the above arrangement may
not be ideal, there are many successful examples from around the world, which
demonstrate that the independence of an investigation has been maintained. It
is most important for states, administrators and all those who are involved in
an air accident investigation to understand the objective of maintaining
independence during the investigation, adopt the arrangements that best suit
their needs and circumstances, and implement them effectively through a sound
and auditable mechanism.
(2). Sound legal and regulatory framework
The second key element for the
establishment of a highly functional air accident investigation setup is the
availability of a sound legal and regulatory framework in support of its
mission, and to provide accident investigators with the required legal
authority for the conduct of a safety investigation in accordance with the provisions
of Annex 13.
Appropriate legislation, which
defines the scope of work and responsibilities of the accident investigation
establishment and those of accident investigators, must be put in place. In
this connection, accident investigators should be aware that air accidents may
be subjected to a technical safety investigation, as well as other judicial,
statutory, administration or regulatory inquiries. Clear provisions and
procedures should thus be formulated to keep the technical safety investigation
separate from other proceedings.
The legislation and regulations
should also clearly specify that the sole objective of the technical
investigation is accident prevention, and not to apportion blame or liability.
The legislation must also protect
certain documents and information obtained during the investigation from public
disclosure in accordance with Annex 13. This is particularly important as
information contained in some records may include content that was given
voluntarily by interviewed persons. Inappropriate exposure of information
obtained in the course of an investigation for purposes other than the
prevention of accidents could inhibit disclosure of information from witnesses
in the future. In turn, this would impede the work of investigators and
negatively impact the thoroughness and accuracy of future investigations at the
expense of promoting safety.
(3). Qualified investigators
The next key element concerns the
people who are actually engaged in conducting accident investigations. Even in
today’s highly modernized and technology-driven society, the significant
involvement and contribution of human efforts in accident investigations are
indispensable.
Accident investigations are highly
specialized and time-critical tasks involving expertise in a wide range of
aviation and non-aviation disciplines. The quality and outcome of an
investigation are heavily dependent on the competence and capabilities of the
investigation team. As such, accident investigations should only be undertaken
by people with the right calibre, experience and training.
Accident investigators should
ideally have a professional background in aviation, such as being a pilot,
aeronautical engineer or aircraft maintenance engineer. The possession of
expert knowledge, skills and a thorough understanding of the aviation operating
environment is of paramount importance to an accident investigator. Other
aviation personnel who possess experience in aviation management and
operations, air traffic control, meteorology and human factors could also
contribute positively to accident investigations.
In addition to technical expertise,
an accident investigator should also possess certain personal attributes,
including integrity, impartiality and perseverance in pursuing evidence
collection, analysis, research and communication skills. An accident
investigator must also be logical and methodical in his or her thinking. He or
she needs to be tactful, attentive to detail and empathetic, especially in
dealing with those who have survived the trauma of an air accident.
Upon recruiting the right people,
the next important step should be the provision of a structured induction
training programme. This is essential in order to develop investigators’
ability, competence and experience for investigation tasks of varying degrees
of complexity. Novice investigators should be guided by experienced mentors
until they are fully competent to work independently under the most taxing
conditions. The training programme should include rules and regulations, Annex
13 provisions, local legislation, interview and investigation techniques,
latest investigation technologies, investigation procedures, and on-the-job,
recurrent and specialized training.
(4). Sound management system
To be prepared in the event of accident
or serious incident, a response plan must be put in place for the activation of
investigation processes in the most expeditious manner. The availability of a
sound management and support system is thus essential to ensure operational
readiness for the timely activation of the accident investigation process,
especially in the following areas:
-
Regular review of
safety regulations and investigation policies
-
Quick response
plan
-
Safety data and
information management
-
Public relations
management and support
With the continuous growth of the
aviation industry, and rapidly changing technologies and safety requirements,
there is a need for every aviation organization to constantly review and update
their organizational policies and operations to keep pace with the latest
developments.
Quick response actions can only be
achieved through adequate planning, coordination and drills before an accident
or incident actually occurs. The setting-up of quick response ‘go- teams’ will
enable the accident investigation establishment to expeditiously respond to an
accident or incident for the collection of evidence, especially volatile
evidence, as well as the timely coordination of the investigation process.
It is also pertinent that a safety
data and information management system be established for the preservation of
accident information and evidence and, whenever necessary, sharing safety
information within the organization and with external parties during and after
the investigation. Safety promotion constitutes an important component of
safety management and a state safety programme. It is essential that safety
information and accident prevention measures be promulgated widely across all
spectrums of the aviation industry in order to achieve overall safety
improvements.
Accidents or incidents often
generate a high degree of interest from the public and the media. Clear public
relations policies and procedures for the release of accident investigation
information would be most helpful in managing public sentiment and undesirable
speculations on the causes of the accident. Regular meetings with the media
provide timely updates on facts to the public without prejudice to the
investigation process. Senior investigators should be given training on media
management and opportunities for public speaking.
(5). Effective coordination with other stakeholders
The circumstances surrounding each
air accident or incident are different. To prepare for the eventuality of an
air accident or incident, it is important that the accident investigation
establishment sets out a pre-coordinated working arrangement with other local
authorities to facilitate the smooth coordination and initiation of the
respective emergency response in support of the investigation team.
To achieve this, the accident
investigation organization may establish formal working or cooperative
arrangements with other government agencies involved in disaster response,
particularly the police and fire service departments, search and rescue units,
medical services and the coroner’s office. Such cooperative arrangements will
foster a better understanding amongst all stakeholders of investigators’ needs
in the preservation of evidence.
In addition, the air accident
investigation body may also have to seek assistance from other organizations to
provide facilities, equipment and specialized services, additional manpower,
e.g., heavy salvage and lifting equipment, helicopters, metal detectors, divers
and surveyors, during the investigation. It is thus important that arrangements
be reviewed and expertise identified in advance to ensure that resources are
readily available when needed.
(6). International and regional collaboration
The International Civil Aviation
Organization (ICAO) and all of its contracting states share a common goal of
achieving safety, security, efficiency and sustainability in civil aviation.
Close regional and international collaboration serves to obliterate the
confines of the physical boundaries of state and facilitates working towards
achieving common standards and objectives regarding accident investigations
amongst contracting states.
On accident investigation matters,
international and regional collaboration may include the delegation of
investigation responsibilities, engagement in mutual assistance and
cooperation, sharing of resources, specialized facilities, equipment, and
expertise in investigations. On accident investigators’ training, areas of
collaboration may include the provision of investigators’ recurrent training,
job attachment programmes and jointly organized training events in order to
facilitate and promote knowledge sharing, as well as to broaden the exposure
and enhance the competency of investigators.
Through strengthened and closer
cooperation between states and regional investigation authorities, the
capability of air accident investigation organizations can be mutually enhanced
to achieve a higher quality of investigation, thereby contributing to
improvements in aviation safety.
2. JUST CULTURE IN
AVIATION
Investigating the causes of aviation
accidents and incidents is of key importance when finding solutions to improve
the safety of aviation and provide assurance to passengers for an uneventful
flight. Nobody should be immune from the law. The use of these findings in
determining whether criminally reproachable behaviour is involved forms part of
the administration of justice; a function that is an integral part of any
society, which respects the rule of law. The issues related to this apparent
conflict between these two worlds and approaches towards reconciling, or at
least balancing, these activities form the basis of this paper. It introduces
the notion of “Just Culture”, experiences involving its application in Europe,
and the prospects and conditions for a more global application. The role and
responsibilities of the ICAO in this context are addressed, in particular, as
the possible facilitator for introducing Just Culture-based solutions in the
different ICAO regions.
Accidents and incidents happen: they
form part of our daily lives and we accept their occurrence, even in air
traffic management and air transport, while we hope and expect that we can
avoid most of them by our actions, professionalism and abiding by established
rules and practices.
Ever since the investigation of aviation
accidents was undertaken in a systematic manner, with the specific aim of using
the findings of each accident investigation for the prevention of other
accidents, the problem of the use of these findings for purposes other than
accident prevention has manifested.
Improving aviation safety depends,
to a large extent, on the feedback of knowledge generated by a system of
accident/incident data collection and analysis. Such a system serves the
industry, as well as its regulators, by allowing it to adapt and improve
equipment and procedures. The high-quality output of the system very much
depends on the existence of systematic record traceability, as well as active
participation and reporting from all the aviation stakeholders involved in
safety areas. In the US and Europe, for example, well-developed accident
prevention processes are in place, including mandatory and voluntary incident
reporting systems and independent accident investigations.
Since its relatively early days, the
ICAO, which is responsible for setting international rules and recommendations
for improving safety, has been confronted by the need to protect aviation
safety interests from those parties that want access to investigation results
and other safety data, with the goal of what the ICAO calls apportioning blame
or liability. Therefore, ICAO rules, in the interest of an uncompromised safety
investigation process, are often seen as advocating protection against the
interests of what is often referred to as “the administration of justice”.
In a safety-critical domain such as
aviation, the legal consequences of (contributory) actions or behaviour, which
could result in serious personal harm, death or other damages, are plentiful
and very significant, both in the private law and, increasingly, in the
criminal law domains. Criminal law forms an essential part for a sovereign
state of the exercise of its responsibility towards enforcing specific
domain-related norms, as well as the prevention and sanctioning of unacceptable
behaviour.
3. SAFETY VS. JUDICIAL
ACTION
The administration of justice, in
particular, in the criminal law domain, constitutes one of the pillars of a
state’s sovereign functions, which are usually firmly imbedded at the
constitutional level. Both the Convention on International Civil Aviation
(hereafter referred to as the Chicago Convention) and the Eurocontrol
Convention explicitly confirm the complete and exclusive sovereignty of a state
over its territorial airspace, which certainly includes the administration of
justice. States are, of course, free to choose to delegate or pool certain
sovereign functions, as is the case with EU membership, while criminal
jurisdiction, with only a few exceptions, generally remains firmly imbedded at
the state level.
There has been growing concern in
recent years, on the part of aviation professionals and the aviation industry,
about the interpretation of flight safety and aviation accidents by the general
public, as well as the criminal judiciary. These concerns are associated with
what is seen as the increasing emphasis on legal issues in aviation safety
occurrences. This has led to a growing fear of litigation and the threat of
criminal sanctions against individuals and organizations that are seen as
partly or fully responsible for an accident or incident in which they were
involved.
We need to understand the
complicated relationship between the administration of justice and the safety
investigation. As in a classical drama, two antagonists are involved: one with
the aim of preserving justice by investigating and prosecuting possible
perpetrators, and the other with the aim of enhancing aviation safety through
independent investigation and reporting.
The issue concerning the
criminalization of aviation accidents or incidents illustrates the delicate
relationship between the propagation of aviation safety and the administration
of justice in the aviation domain. These are two distinct worlds that seldom
meet: one is, by nature, international, dynamic and very sensitive to safety;
the other is, by nature, national, resistant to progressive change and very
sensitive to the rule of law. It is no wonder that their interaction, or
perhaps the lack thereof, generates difficult and often passionate discussions.
Accidents and serious incidents very
often occur as the result of a series of events, which, in an eerie and
inevitable way, lead to disastrous results. When mistakes are involved, they
can often be labelled as “honest” mistakes, which would not qualify as criminal
behaviour. Controllers and pilots are professionals who are ready to realize
that nobody can claim criminal immunity in any civilized country. But, it is
equally true that a small, but highly visible, number of cases raise questions
about the relevance and motives of some criminal prosecution and court cases.
Here lies the root of the problem:
who will determine whether a 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 the many
legal terms for criminally reproachable behaviour)? That person cannot be a
chief pilot or a control room supervisor; such a call can only be made by a
professional in the judiciary, a prosecutor and ultimately a court of law.
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, such as an investigation and indictments. A number of
high-profile accidents and serious incidents has not resulted in criminal
investigations and proceedings, which has raised strong concerns from the air
traffic control and air transport community about the criminalization of
aviation. That is not all, as events have shown that further complications may
arise as a result of public and media pressure, which that generally
accompanies any crash or serious incident, with the associated “search” for a
guilty party.
The discussion on the
criminalization of aviation incidents and accidents highlight concerns
regarding the perceived intrusion by the judiciary in the all-important effort
to enhance safety in aviation. It also shows a tendency to use
“criminalization” as the epitome of misdirected and unwarranted activities by
the authorities, as well as to argue that the safety domain should be protected
from any action by the prosecuting authorities.
The problem is that invoking the
real or alleged criminalization of aviation incidents or accidents as a justification
for fully protective legislative action does not really work. All the regional
and global rules and standards related to the protection of safety data and
investigative processes in aviation create an exception for the actions of a
sovereign state in the exercise of the administration of justice. What is now
needed is a balance between two equally relevant goals: aviation safety and the
administration of justice.
4. DIALOGUE BETWEEN
THE NATIONAL AUTHORITIES
Rather than trying to silence the
judiciary, focus has now shifted towards initiating a dialogue 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 as to how to apply
the relevant laws, while a clearer appreciation of the associated safety
consequences may actually influence the application of those laws.
This is where the Just Culture
initiative, as developed for aviation by Eurocontrol, enters the equation.
Attempting to describe, let alone define, Just Culture is not simple, to put it
mildly. The results may vary from one person, culture or legal system to
another. The following description of Just Culture in the aviation domain has
been accepted in Europe:
“A Culture where front line 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.”
This description introduces the
notion of gross negligence and wilful violations for qualifying criminally
relevant behaviours, which are not in accordance with internationally agreed
definitions. Although the criteria to establish gross negligence or related
legal concepts in common or civil law may be similar in most countries, their
interpretation and application with respect to individual cases will ultimately
lie in the hands of prosecutors and a criminal court.
When the legal consequences of Just
Culture were first discussed, the initial reaction was that most European
states would need to significantly amend their laws in order to implement Just
Culture in a non-punitive environment. Calls were made for changes to criminal
laws, as well as regulating and fully protecting access to information. The
general feeling was that Just Culture could not be implemented without these.
Subsequently, when the discussions
began to mature, it dawned upon the participants that amending laws and
principles, which constitute the basis of sovereign judicial systems, was, in
most cases, not a realistic option. Of equal importance, it was not deemed
essential. The issue was not necessarily the need for more legislative actions,
but rather the way in which those existing laws and regulations were
implemented and enforced by national judicial authorities.
Provisions already exist, which
could result in a legal environment supporting Just Culture, while taking a
realistic view about the need to respect some fundamentals with regard to the
administration of criminal justice. Several relevant instruments dealing with
accident investigations and incident reporting, supported in some cases by
guidance material, are in place.
5. GLOBAL AND REGIONAL
PROGRESS
Since Just Culture has been on the
agenda for many years, it has become apparent that a key part of its successful
implementation relies on a number of realistic deliverables, which could
stimulate further understanding among, and active and open coordination
between, the safety and judicial authorities.
In the ICAO, the discussions and
findings of its 36th Assembly, the Accident Investigation and Prevention
Divisional meeting in 2008, and the recommendations of the ICAO High-level
Safety Conference in March 2010 resulted in resolutions A37-2 and A37-3 at the
37th General Assembly on the sharing of safety information and the protection
of safety data. Both resolutions, using the description of the Just Culture
initiative, instructed the ICAO Council to strike a balance between the need
for the protection of safety information and the need for the proper
administration of justice. The Assembly further noted the need to take into
account the necessary interaction between safety and judicial authorities in
the context of an open reporting culture. The ICAO Safety Information
Protection Task Force (SIPTF) was, among other reasons, created as a result of
these conclusions, which, to a great extent, have inspired its findings and
recommendations.
In Europe, the EU has not only
formally enacted Just Culture as part of EU law, with the introduction of
Performance Regulation (EU) No 691/2010 , but it has also recently introduced
elements of it in Regulation (EU) No 996/2010, governing air accident and incident
investigations, which also addresses the need to achieve a balance between the
objectives of the judiciary to determine whether criminality was involved, and
the need for the aviation industry to be able to run a real-time
self-diagnostic system without unnecessary interference from the justice
system.
EU Regulation 996/2010 stipulates
that its purpose is dual: to regulate both “the investigation and prevention of
accidents and incidents”. It says: “An accident raises a number of different
public interests such as the prevention of future accidents and the proper
administration of justice. Those interests go beyond the individual interests
of the parties involved and beyond the specific event. The right balance among
all interests is necessary to guarantee the overall public interest.”
Although it may sound a little
negative, the strength of the Just Culture concept (or by any other name, as
long as it addresses the same processes) is the understanding that there is
realistically no other way forward. Formal legislation, fully protecting pilots
or controllers or sidelining criminal prosecution is a dead-end street, as
demonstrated by all the existing national, regional and international pieces of
legislation. Providing a reasonable expectation, for example, with regard to a
controller or a pilot, that the chances that he or she would ever be invited to
be part of a preliminary criminal investigation, let alone prosecution, are
highly minimal, should provide the sound basis for continued incident reporting,
and even measured and balanced accident investigations.
Just Culture represents the
fundamental recognition that both the aviation safety drive and the
administration of justice should benefit from a carefully established
equilibrium, moving away from criminalization fears. It is based on the
understanding that controllers and pilots can blunder, and that the line
between an “honest mistake” and intentional or reckless behaviour can only be
drawn by a judiciary professional.
That is easier said than done, of
course. But the time has come to seriously question the added value of endless
and generally unsuccessful efforts at the international level to “protect”
controllers and pilots against judiciary actions by creating standards,
regulations and laws, which are supposed to shield them against interference by
justice bodies. This is perhaps a good time to point out that this paper
primarily focuses on the introduction and benefits of Just Culture at the state
and international level, as well as the interaction between safety experts and
the judiciary. At the (national) corporate level, in the interaction between
management and staff of airlines and air traffic service providers, for
example, Just Culture inevitably plays an equally important role in the acts of
pilots and controllers and the application of company rules, contract and
labour law.
A lot of progress has already been
made in this domain through safety management and related practices, while the
new ICAO Annex 19 will certainly play an important role in this area. It is
important to note that these developments will also require the recognition and
perhaps the harmonization of corporate Just Culture with criminal law
requirements and policies at state level.
6. CONCLUSION
The time has come to focus on the
pursuance of the practical goals identified by Just Culture activities. The
first steps toward the proliferation of the model aviation prosecution policy
concept have been taken and the first prosecutor expert courses have been held.
The relevance of offering assistance and education to prosecutors and judges,
together with the introduction and implementation of the model for an aviation
prosecution policy in Europe and beyond, is obvious. After the historic support
from the 39 full state members of the Eurocontrol and the EU for these
deliverables, the next step will be to submit them for global consideration at
the ICAO.
At the 37th General Assembly,
Resolutions A37-2 and A37-3 on the sharing of safety information and the
protection of safety data added the instruction to the ICAO Council to strike a
balance between the need for the protection of safety information and the need
for the proper administration of justice. The Assembly further noted the need
to take into account the necessary level of interaction between safety and
judicial authorities in the context of an open reporting culture.
As mentioned earlier, the ICAO SIPTF
was tasked with analysing present ICAO rules, standards and recommended
practices (SARPs), and national legislation, as well as considering enhanced
communication and interaction mechanisms to improve the efficiency and
credibility of data protection and incident reporting, and the relations
between safety activities and the national judiciary.
It may be expected that the SIPTF,
which held its last meeting in January 2013, will come forward with realistic
proposals for the enhancement of safety data protection, which recognize and
reconcile the existing national and international legislation and regulatory
processes, and their limitations. In addition to SIPTF recommendations
regarding changes in positive law or ICAO SARPs, considerable progress could be
made in advancing safety information protection, with deliverables in the
domains of training, support, education and communication, through innovative
implementation tools and tactics in order to balance the adequate protection of
safety data with the proper administration of justice.
There is general recognition of the
need to establish communication and training initiatives, as well as advance
arrangements between the aviation safety sector, regulators, law enforcement
and the judiciary to avoid unnecessary interference and build mutual trust and
understanding. Furthermore, making high-level aviation expertise available to
law enforcement and the judiciary could facilitate the exercise of their
respective investigative and judicial processes.
Several states and groups of states
in different ICAO regions are already organizing training and communication
between safety and judicial authorities, which address implementation tools and
deliverables that should lead to a stable and successful basis for enhanced
safety data protection and a balanced interaction between safety and the
administration of justice. It is important to note that these recommendations
address processes and activities, which are expected to continue well beyond
the active life of the SIPTF. Training, support, cooperation, communication and
advanced arrangements form decisive conditions for an efficient and realistic
safety data protection.
The time has come for the ICAO to
further build on Just Culture principles, while becoming the facilitator at the
regional level to educate and encourage states in order to establish (joint)
permanent frameworks, ensure a constructive and ongoing dialogue with the
judiciary, inform them on the possibilities for establishing a national
aviation prosecution policy and provide them on request, with dedicated and
impartial aviation expertise in the exercise of their functions.
Furthermore, the ICAO should
establish and regularly update a repository of training and education
activities related to the protection of safety data, interaction with the
judiciary, and existing or new best practices and policies. It should also
provide coordination and support, as well as organize progress reporting and
information on a regular basis to all contracting states.
Just Culture is not a “magic wand”
against injustice and the misuse of judiciary processes. It has been introduced
to protect, as much as possible, the mundane, but highly important, ongoing
processes of incident reporting: the literally thousands of daily events that
feed into the well-established system, which uses such reports for the
improvement of safety and the prevention of incidents and accidents. This
represents an ongoing daily routine, which is not as spectacular and awesome as
the aftermath of an accident, but absolutely vital for the continued effort to
improve safety by learning from mistakes and other relevant occurrences.
Just Culture requires understanding
and appreciating the different processes and commitments involving both safety
people and the judiciary. Let there be no mistake: Just Culture also implies
that the misuse of criminal processes or ignorance on the part of the judiciary
is equally unacceptable! There is still a long way to go, both in Europe as
well as at the ICAO; but most signs are outright encouraging, as evidenced by
the deliverables of the Just Culture Task Force and those expected from the
SIPTF, as well as reactions from third parties.
Finally, as good concepts are often,
in essence, simple ones, I am minded that Just Culture, in terms of reconciling
safety and justice interests, can be summarized by the aphorism, “it takes two
to tango”!
References
1.
Commission
Regulation (EU) No 691/2010 of 29 July 2010 Laying Down a Performance scheme for Air Navigation Services and Network
Functions and Amending Regulation (EC) No 2096/2005 Laying Down Common
Requirements for the Provision of Air Navigation Services. OJ L 201,
03.08.2010.
2.
Derbel
O., T. Péter, B. Mourllion, M. Basset. 2017. “Generalized velocity-density
model based on microscopic traffic simulation”. Transport. DOI: http://dx.doi.org/10.3846/16484142.2017.1292950.
3.
International Civil
Aviation Organization. 2006. Convention
on International Civil Aviation (Ninth Edition). Canada: International
Civil Aviation Organization.
4.
International Civil
Aviation Organization. 2010. Annex 13 to
the Convention on International Civil Aviation: Aircraft Accident and Incident
Investigation (10th Edition July 2010). Canada: International Civil
Aviation Organization.
5.
Regulation (EU) No
996/2010 of the European Parliament and of Council of 20 October 2010 on the
Investigation and Prevention of Accidents and Incidents in Civil Aviation and
Repealing Directive 94/56/EC. OJ L 295, 12.11.2010.
6.
Resolutions adopted
by the 37th Session of the ICAO General Assembly held in September/October 2010. Available at:
http://legacy.icao.int/icao/en/assembl/A37/Docs/a37_res_prov_en.pdf.
7.
Mitropoulos
L., G. Adamos, E. Nathanail, I. Yatskiv (Jackiva), I. Kabashkin. 2017.
“Building on European scientific excellence to develop an educational program
on intermodal connections for Latvia and the region”. Transport 32(1): 79-93. DOI: http://dx.doi.org/10.3846/16484142.2017.1280851.
Received 12.03.2017;
accepted in revised form 05.05.2017
Scientific Journal of Silesian University of
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