In March, a court in Switzerland found an air traffic controller guilty of negligent disruption of public transport in relation to an operational incident at Zurich Airport six-and-a-half years ago. No one was injured in the incident. The conviction marks the third time in a year that Swiss prosecutors have won a conviction against a controller for an operational incident.
The Swiss cases and similar recent events represent an uptick in legal actions that is effectively criminalizing aviation incidents and accidents. This can have a chilling effect on the flow of crucial safety information and a long-term adverse impact on safety. Holding controllers, pilots and aviation maintenance technicians criminally liable for honest mistakes ultimately threatens the safety of the traveling public.
The sole objective of an aircraft accident or incident investigation is the prevention of future accidents and incidents. As the International Civil Aviation Organization (ICAO) plainly states in Annex 13, Aircraft Accident and Incident Investigation, and in accompanying materials, “it is not the purpose of an investigation to apportion blame or liability.”
Flight Safety Foundation has long held that the safety of the traveling public and the continued improvement of the aviation industry’s safety performance depend on encouraging a climate of openness and cooperation following accidents and serious incidents. It is that climate of openness and cooperation that allows investigators to determine the probable and contributory causes of accidents and incidents from which risk mitigation strategies and lessons learned are developed.
As the Foundation said in its 2006 Joint Resolution on the criminalization of aviation accidents, the paramount consideration in an aviation accident investigation should be to determine probable cause and contributing factors in the accident, not to criminally punish flight crews, maintenance employees, management officials and executives of airlines or manufacturers, regulatory officials or air traffic controllers. By identifying the “what” and the “why” of an accident, aviation safety professionals will be better equipped to address accident prevention in the future.
It has been said that the aviation industry is the most labor-intensive safety operation in the world. Human errors are going to happen. The redundancies and mitigations in our current processes have helped to trap these hazards so that in commercial aviation, there are fewer than three accidents per million flight sectors, according to ICAO data. It is imperative that the industry learn from those errors to improve upon this outstanding performance and to reduce the risk that similar accidents might happen again.
The aviation industry has a remarkable safety record due in large part to the willingness of operators and manufacturers to cooperate fully and frankly with investigating authorities. The benefit of gaining accurate information to increase safety standards and reduce recurring accidents outweighs the retributive satisfaction of a criminal prosecution, conviction and punishment. Increasing safety in the aviation industry is a greater benefit than seeking criminal punishment for those “guilty” of human error or tragic mistakes.
The Foundation understands that it is unrealistic to expect that aircraft accidents will not, in some cases, result in civil or criminal legal proceedings. Evidence of willful acts of misconduct, intentional failures to follow procedures, or egregious reckless behavior should result in regulatory enforcement action or, in some cases, criminal prosecution.
But all parties involved must keep in mind that criminal investigations and other judicial actions may hinder the critical information-gathering portions of an accident investigation and subsequently interfere with the successful prevention of future accidents and the mitigation of risk.
As the Foundation did more than a decade ago, when it became concerned with a trend to criminalize acts and omissions of parties involved in accidents and incidents, we urge states to exercise restraint and adopt or adhere to strict guidelines before officials initiate criminal investigations or bring criminal prosecutions in the wake of accidents.