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09 October 2013
Whenever there is reason to believe that unauthorised persons may have had access to the aircraft, a security search must be performed,(4) consisting of a thorough inspection of the interior and exterior of the aircraft for the purpose of discovering suspicious objects, weapons, explosives or other dangerous devices, articles and substances.
The Swiss Federal Office of Civil Aviation (FOCA) found that Swiss International Air Lines did not always comply fully with these requirements. FOCA therefore ordered the air carrier to ensure full compliance immediately. FOCA held that a failure to take appropriate measures would result in a fine of up to Sfr20,000 being imposed on the air carrier's directors and officers.
Swiss International Air Lines appealed against FOCA's order, but the Federal Administrative Tribunal rejected the appeal.(5) The air carrier lodged a second appeal with the Federal Supreme Court. It argued that FOCA's order was insufficiently specific in the sense that it remained unclear what exact measures the airline ought to take. Swiss International Air Lines also contended that FOCA's threat of imposing a fine amounted to a disproportionate criminalisation of the matter.
On August 8 2013 the court mostly dismissed the appeal.(6)
The court reasoned that by virtue of the EC-Switzerland Air Transport Agreement,(7) Regulations 300/2008 and 185/2010 apply in Switzerland directly, and air carriers must ensure the correct implementation of the security measures in relation to their aircraft. If a carrier does not comply, FOCA may seek enforcement by way of an order. The court stated that the carrier must decide autonomously how to organise and train its staff internally in order to achieve the relevant security standards. Therefore, FOCA was right to keep its order unspecified as to what measures Swiss International Air Lines ought to take.(8)
Further, the court stated that pursuant to the Federal Aviation Law Act, FOCA may enforce aviation-related duties by reference to a fine and criminal prosecution of the company's directors and officers in the event of non-compliance.(9) According to the court, FOCA was right to decide that a failure to take appropriate measures could result in a fine of up to Sfr20,000 being imposed on the carrier's directors and officers.(10)
However, the court noted that because of imprecise drafting of the order, directors and officers could be held criminally liable only if they failed to take appropriate action. The court found that FOCA's order was insufficient on a legal basis for criminal liability in case the directors and officers were to take appropriate action, but do so without always fully achieving the security standards. To prevent such an unsatisfactory result the court amended FOCA's order ex officio and held that Swiss International Air Lines must prove in writing to FOCA that the standards for aircraft protection and security search have been implemented within three months from service of the court's judgment. Failure to do so will result in a fine of up to Sfr20,000 for the directors and officers of Swiss International Air Lines.(11)
The court's judgment reflects that in the realm of aviation security a level of 100% (ie, total) security is sought. However, this is unrealistic. If incidents occur, aviation authorities and the judiciary sometimes overreact.
In aviation safety (as opposed to aviation security) it has long been accepted that 100% safety is impossible. Accordingly, the weighing of costs and benefits is essential, so that isolated events may be looked at with some degree of leniency.(12) In this case, the court refused to accept any leniency and opted for a strict approach, combined with the threat of a penalty and criminal prosecution against aviation professionals. This is possible from a legal viewpoint in Switzerland.
However, it is doubtful whether a system that relies heavily on criminal penalties is effective in terms of aviation security. An alternative approach would differentiate between inadvertent errors (which should be reported and analysed comprehensively) and wilful and reckless behaviour (for which aviation professionals should be held accountable). Such an approach would provide opportunities for the elimination of deficiencies that might remain invisible in the adversarial and hard-line approach upheld by the court.
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