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29 May 2013
The objective of aviation safety is to prevent accidents. As accidents result from an undesirable chain of events, preventing them means breaking this chain. This in turn requires knowledge of the links in the chain. Taken separately, each link, although perhaps harmless in itself, is a potential precursor to an accident. These precursors may become apparent by observing and understanding safety events that occur in flight operations. In this context, occurrence reporting systems, both mandatory and voluntary, are vital tools.(1)
The effectiveness of any occurrence reporting system depends on the confidence that pilots, air-traffic controllers and other aviation professionals have in it. One concern is that individuals will be reluctant to report occurrences if they fear that criminal proceedings may be instituted against them. An effective system would therefore not only protect the reporter's identity, but also contain non-punitive provisions.
'Non-punitive' should not mean that that persons responsible for safety escape liability for intentional wrongdoing or gross negligence. Instead, it should mean a 'just culture', where front-line operators or others are not punished for actions, omissions or decisions taken that are commensurate with their experience and training, but where gross negligence, wilful violations or destructive acts are not tolerated. While nothing should prevent criminal prosecution in the event of intentional wrongdoing or gross negligence, prosecution should not be brought against individuals for actions, omissions or decisions that reflect the conduct of a reasonable person, even where those actions may have caused an unpremeditated or inadvertent infringement of the applicable law.(2)
In 2007, on the basis of Annex 13 of the International Civil Aviation Organisation and EU Directive 2003/42/EC (which is currently being revised), Switzerland introduced a non-punitive occurrence reporting system.(3)
The reporting system applies to occurrences which endanger or, if not corrected, would endanger an aircraft, its occupants or any other person - as per Annexes 1 and 2 of the directive - but fall short of accidents or serious incidents (these are investigated by the Accident Investigation Board). Examples of such occurrences include:
The reports are collected, evaluated, processed, analysed and stored by the Safety Risk Management Office within the Federal Office of Civil Aviation (FOCA). The Safety Risk Management Office must be independent of any other body with supervising functions within FOCA and must treat the reports with strict confidence. It must de-identify the reports.
Criminal prosecution will not be brought if the occurrence is not the result of an intentional or grossly negligent breach of the law; is known only by FOCA through the occurrence report; or has been reported by:
The occurrence reporting system is a step in the right direction, but it still falls short of what is needed for aviation safety. Anecdotal evidence suggests that many pilots, air-traffic controllers and other aviation professionals fear the risk of inappropriate criminal prosecution and are therefore reluctant to report occurrences.
One reason for this fear is that the notion of gross negligence leaves room for interpretation. A person who considers reporting an occurrence may not know beforehand whether the FOCA Safety Risk Management Office will consider certain actions, omissions or decisions as grossly negligent.
Moreover, occurrences may be incriminated under a wide-ranging provision of the Criminal Code, even if there was no injury or damage.(4) As yet, there is no settled case law regarding the relationship of that provision and the safeguards of the occurrence reporting system, but prosecutors and criminal judges do not appear generally to be forthcoming in offering privileges to aviation professionals as regards criminal liability that other professional branches do not enjoy.
In any event, aviation professionals should seek legal advice before making a decision whether to report a certain occurrence.
(2) Eurocontrol model policy regarding criminal investigation and prosecution of civil aviation incidents and accidents, Just Culture Task Force, which is composed of legal and safety experts of the member states of Eurocontrol, the European Commission, air traffic management and air transport associations and Eurocontrol itself.
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