Article citation information:
Balcerzak, T. A “just culture”? Conflicts of interest in the
investigation of aviation accidents. Scientific
Journal of Silesian University of Technology. Series Transport. 2017, 94,
5-17. ISSN: 0209-3324. DOI: https://doi.org/10.20858/sjsutst.2017.94.1.
Tomasz BALCERZAK[1]
A “JUST CULTURE”? CONFLICTS OF INTEREST IN THE INVESTIGATION OF
AVIATION ACCIDENTS
Summary. The
sole purpose of air accident investigations should be the prevention of
accidents and other incidents in the future, without apportioning blame or
liability. A civil aviation safety system is based on feedback and lessons
learned from accidents and incidents, while requiring 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 an individual in the framework of a safety investigation should not
be used against them, in full respect of constitutional principles, and
national and international law. Each “involved person” who knows about an
accident or serious incident should promptly notify the competent state
authority for carrying out an investigation of the event. “Involved person”
refers to one of the following: the owner; a member of the crew; the operator
of the aircraft involved in an accident or serious incident; any person
involved in the maintenance, design, manufacture of that aircraft or in the
training of its crew; any person involved in air traffic control, providing
flight information or providing airport services, which provided services for
the aircraft concerned; staff of the national civil aviation authority; or
staff of the European Aviation Safety Agency. In terms of the protection level
of the organization (employer), employees who report an event or submit an
application to the investigation cannot bear 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, i.e., the failure to provide unquestionably duty of care required
under the circumstances, causing possible or actual damage to persons or
property leading the level of aviation safety being seriously compromised. All
employees in the aviation sector, regardless of their function, have
safety-related duties and are therefore critical to the security of the entire
civil aviation system. The safety of this system requires that any event that
has or may have an impact on security in aviation should be reported voluntarily
and without delay, because it is necessary to conduct an appropriate
investigation in order to increase the level of safety. “Just Culture” is the
basic premise for the effective functioning of the reporting of events required
for all aviation organizations in order to maintain and raise the safety level.
As safety management is based on precise 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 by all stakeholders, as well as provide certain comfort and
confidentiality to persons 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, aviation insurers, the Aircraft Accident Investigation Commission
and other entities. Is it possible to reconcile the interests of the so-called
culture of aviation safety, i.e., Just Culture, 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 widely presented in this article.
Keywords: aviation accident, conflict of
interests, Just Culture, accident investigation, safety.
1. INTRODUCTION
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, has been working closely to make our skies safer. Among
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 accidents can be
prevented. One accident is one too many; whenever it happens, it is bound to
hit the news headlines across 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 [2]. 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 the prevention of recurrence, and not for the
purpose of apportioning blame or liability [3, 6]. The identification of causal
factors to prevent recurrence is best accomplished through a properly conducted
investigation.
To meet all these international
obligations and to enable a proper investigation of accidents or incidents to
be conducted, an appropriate establishment 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 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 air accident
investigation authority as a separate statutory body independent of the civil
aviation regulatory authority.
In many other states with a
relatively small scale of 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, the state would
mobilize a normally dormant accident investigation team, comprising qualified
investigators, or 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’s regulatory agencies on a needs basis. In such circumstances, 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
civil aviation regulatory authority.
·
The findings and
recommendations of the investigation team shall not be influenced nor tampered
with by any other party outside the investigation.
Although the above arrangement may
not be ideal, there are many successful examples worldwide that demonstrate
that the independence of an investigation has been maintained. It is most
important for states, administrators and all those who are involved in air
accident investigations to understand the objective of maintaining
independence, adopt 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, together with the provision of accident investigators with the
required legal authority to conduct a safety investigation in accordance with
the provisions of Annex 13.
Appropriate legislation that defines
the scope of the work and responsibilities of the accident investigation
establishment and those of accident investigators must be put in place. In this
respect, accident investigators should be aware that air accidents may be
subjected to technical safety investigations, 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, 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 material given voluntarily by
interviewees. Inappropriate exposure of information obtained in the course of
an investigation for purposes other than the prevention of accidents would
inhibit disclosure of information from witnesses in future. This, in turn,
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 those
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.
An accident investigation is a
highly specialized and time-critical task 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; for example, they could be
pilots, aeronautical engineers or aircraft maintenance engineers. 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 positively contribute to an accident investigation.
In addition to technical expertise,
an accident investigator should also possess certain personal attributes,
including integrity, impartiality and perseverance in collecting evidence,
analysis, research and communications skills. An accident investigator should
also be logical and methodical in thinking, as well as tactful, attentive to
detail and empathetic, especially when dealing with those who survived the
trauma of an air accident.
Upon recruiting the right people,
the next important step is the provision of a structured induction training
programme. This is essential for developing investigators’ ability, competence
and experience for investigation tasks of various complexity. Novice
investigators should be guided by experienced mentors until they are fully
competent to work independently under the most taxing situations. The training
programme should include rules and regulations, Annex 13 provisions, local
legislation, interview and investigation techniques, current investigation
technologies, investigation procedures, and on-the-job, recurrent and
specialized training.
4. Sound management system
To be prepared in the event of an
accident or serious incident, a response plan must be put in place for the
activation of the 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 an accident investigation
process, especially in the following areas:
·
regular review on
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. Setting up quick response “Go Teams” will enable
the accident investigation establishment to expeditiously respond to an accident
or incident in terms of collecting 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 is established for the preservation of
accident information and evidence, as well as, 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 to achieve overall safety improvement.
Accidents or incidents often
generate a high degree of interest from the public and the media. A clear
public relations policy and procedure for the release of accident investigation
information would be most helpful in managing public sentiment and undesirable
speculation 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 department, fire services department, search and rescue
units, medical services and the coroner’s office. Such cooperative arrangements
will foster better understanding among all stakeholders of the importance of
the preservation of evidence to investigators.
The air accident investigation
organization may also need to seek assistance from other organizations to
provide facilities, equipment and specialized services, and additional manpower
(e.g., to operate heavy salvage and lifting equipment, helicopters, metal
detectors, divers and surveyors) during the investigation. It is thus important
that arrangements are reviewed and expertise identified in advance to ensure
that resources are readily available when needed.
6. International and regional
collaboration
The 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
states and facilitates working towards
achieving common standards and objectives of accident investigation between
contracting states.
On accident investigation matters,
international and regional collaboration may include the delegation of
investigation responsibilities, engagement in mutual assistance and
cooperation, and sharing resources, specialized facilities, equipment and expertise
on the investigation. For accident investigators’ training, areas of
collaboration may include the provision of investigators’ recurrent training,
job attachment programmes and the joint organization of training events in
order to facilitate and promote knowledge sharing, as well as 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 helping to raise the
standards of aviation safety.
2. JUST CULTURE IN
AVIATION
Investigating the causes of aviation
accidents and incidents is of key importance when looking for solutions that
improve the safety of aviation and provide assurance to passengers that their
flight will be uneventful. Nobody should be immune from the law, however. 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 respecting 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, 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,
forming part of our daily lives. 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 compliance with
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. A 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.
From 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 domain. Criminal law is essential for a sovereign state in the
exercise of its responsibility for enforcing specific domain-related norms,
along with the prevention and sanctioning of unacceptable behaviour.
3. SAFETY VERSUS
JUDICAL
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 and
the Eurocontrol Convention explicitly confirm the complete and exclusive
sovereignty of a state over its territorial airspace. This 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, although criminal jurisdiction, with only a few exceptions,
generally remains firmly imbedded at the state level.
There has been a growing concern in
recent years on the part of aviation professionals and aviation industry
regarding 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 of 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 of it,
generates difficult and often passionate discussions.
Accidents and serious incidents very
often occur as the result of a series of events, which in a peculiar, albeit
inevitable, way leads 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 raises questions
about the relevance and motives of some criminal prosecution and court cases.
Here lies the root of the issue: 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 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 investigations and indictment. A number of high-profile
accidents and serious incidents has not resulted in criminal investigations and
proceedings, even though strong concerns have been raised by the air traffic
control and air transport community about the criminalization of aviation. That
is not all, as events have shown that further complications could arise as a
result of public and media pressure, which generally accompanies any crash or
serious incident with the associated “search” for the guilty party.
The discussion on the
criminalization of aviation incidents and accidents highlights concerns about
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 argue that the safety domain should therefore be protected from any action
by the prosecution.
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 needed now is the establishment of equilibrium between two equally
relevant goals: aviation safety and the administration of justice.
4. DIALOGUE BETWEEN
NATIONAL AUTHORITIES.
Rather than trying to silence the
judiciary, the 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
those laws; 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 that 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, ultimately, 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 and to regulate and fully protect access to information. The general
feeling was that Just Culture could not be implemented without these.
Subsequently, when the discussions
became more 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. Equally important, 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 the national judicial authorities.
Provisions that could result in a
legal environment supporting Just Culture, while taking a realistic view of the
need to respect some fundamentals with regard to the administration of criminal
justice, already exist. A number of relevant instruments dealing with accident
investigations and incident reporting, supported in some cases by guidance
material, is in place.
5. GLOBAL AND REGIONAL
PROGRESS
It has become apparent that, for
Just Culture, which has been on the agenda for many years, a key part of its
successful implementation relies on a number of realistic deliverables that
could facilitate further understanding and active and open coordination between
the safety and judicial authorities.
Within 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 of 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 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 furthermore 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 [1], but 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.
Regulation (EU) No. 996/2010
stipulates that its purpose is twofold: to regulate both “the investigation and
prevention of accidents and incidents” [4]. The regulation states that: “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 Just Culture (or a concept known 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 that fully protects
pilots or controllers or sidelines criminal prosecution is a dead-end street,
as demonstrated by all the existing national, regional and international
legislation. Providing a reasonable expectation, for example, to a controller
or a pilot, that the chances that they would ever be invited to be part of a
preliminary criminal investigation, let alone prosecution, are very minimal,
would provide a sound basis for continued incident reporting, as well as
measured and balanced accident investigations.
Just Culture represents the
fundamental recognition that both the aviation safety drive and the
administration of justice would benefit from a carefully established
equilibrium, moving away from criminalization fears. It is based on the
understanding that controllers and pilots can blunder, while the line between
an “honest mistake” and intentional or reckless behaviour can only be drawn by
a judiciary professional.
This 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 that are supposed to shield them against interference by
the justice system. 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 on the interaction between safety experts
and the judiciary. At the (national) corporate level, in the interaction
between management and staff of, say, airlines and air traffic service
providers, Just Culture inevitably plays an equally important role in the
actions of pilots and controllers and the application of company rules,
contracts and labour law.
Much progress has already been made
in this domain through safety management and related practices, while the new
ICAO Annex 19 will also play an important role in this area. It is noteworthy
that these developments will also require the recognition and possible
harmonization of corporate Just Culture with criminal law requirements and
policies at the state level.
6. CONCLUSION
The time has come to focus on the
pursuance of practical goals identified by Just Culture activities. The first
steps toward the proliferation of the model aviation prosecution policy concept
have started, while 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
offered by the full 39-state Eurocontrol membership and the EU for these
deliverables, the next step will be to submit them for global consideration at
the ICAO.
At the ICAO’s 37th General Assembly,
Resolutions A37-2 and A37-3 on the sharing of safety information and the
protection of safety data included an 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 [5]. The Assembly furthermore
noted the need to take into account the necessary interaction between safety
and judicial authorities in the context of an open reporting culture.
As mentioned earlier, the ICAO SIPTF
was tasked with analysing current ICAO rules, standards and recommended
practices and national legislation, as well as considering enhanced
communication and interaction mechanisms, in order to improve the efficiency
and credibility of data protection and occurrence reporting, along with the
relationship 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 standards and recommended practices, considerable
progress could be made in advancing safety information protection with
deliverables in the domains of training, support, education and communication,
through the innovative implementation tools and tactics, in order to balance
the adequate protection of safety data with the proper administration of
justice.
There is a general recognition of
the need to establish communication and training initiatives and advance
arrangements between the aviation safety sector, regulators, law enforcement
and the judiciary in order to avoid unnecessary interference and build mutual
trust and understanding. Furthermore, making high-level aviation expertise
available to law enforcement and the judiciary would facilitate the exercise of
their appropriate investigative and judicial processes.
A number of states and groups of
states in different ICAO regions is already organizing training and
communication between safety and judicial authorities, which address
implementation tools and deliverables that could 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 that are expected to
continue well beyond the active life of the SIPTF. Training, support,
cooperation, communication and advanced arrangements form decisive conditions
for efficient and realistic safety data protection.
The time has come for the ICAO to
further build on the Just Culture principles and become the facilitator, at the
regional level, to educate and encourage states to establish (joint) permanent
frameworks to ensure a constructive and ongoing dialogue with the judiciary in
order to inform them of the possibilities for establishing a national aviation
prosecution policy, while providing them, at their request, with dedicated and
impartial aviation expertise in the exercise of their functions.
The ICAO should also 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 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”
to wave in the face injustice and the misuse of judiciary processes. It has
also been introduced to protect, as much as possible, the mundane, but ever so
important, ongoing processes of incident or occurrence reporting: there are
literally thousands of daily events that are fed into the well-established
system of using reports for the improvement of safety and the prevention of
incidents and accidents. This represents an ongoing daily routine, which is
certainly not as dramatic as the aftermath of an accident, but is absolutely
vital to the continued effort to improve safety by learning from mistakes and
other relevant occurrences.
Just Culture requires an
understanding and appreciation of the different processes and commitments
involving both safety personnel and the judiciary. Let there be no mistake:
Just Culture also implies that 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 within the ICAO; but, most of the signs are outright
encouraging, as witnessed by the deliverables of the Just Culture Task Force,
as well as those expected from the SIPTF and reactions from third parties.
Finally, as the best concepts are
often the most simple ones, I would submit that the essence of Just Culture,
which reconciles safety and justice interests, can be conveyed in the
well-known saying, “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.
Convention on
International Civil Aviation, Ninth Edition. ICAO, 2006.
3.
Annex 13 to the Convention on International
Civil Aviation – Aircraft Accident and Incident Investigation (10th Edition).
ICAO, 2010.
4.
Regulation (EU) No.
996/2010 of the European Parliament and of the 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.
5.
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.
6.
Pauliukevičiūtė
Audronė, Robertas Jucevičius. 2016. “Evaluation of Strategics as Smartness
Dimension in Cultural Management”. Mechanika,
Vol. 15, No 3: 375-389. DOI: http://dx.doi.org/10.5755/j01.ppaa.15.3.16612. ISSN:
1648-2603.
Received 10.12.2016;
accepted in revised form 02.02.2017
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