JUDGES AUBERTIN AND
ROBINSON
TAKE OVER AIR FRANCE 447
"MASS DISASTER" CASE
By Roger Rapoport
PARIS - After six turbulent years the Air France 447 criminal
investigation has moved to a new "mass disaster" court division with a long
name, Pôle Santé Publique et Accidents Collectifs du Tribunal de Grande Instance
de Paris"
Two well qualified judges, Nicolas Aubertin and Emmanuelle Robinson,
may order further investigation of the Airbus 330 crash. Alternatively they
could rule that a detailed 700 page technical report filed with Investigative
Magistrate Sophie Zimmerman in 2012 is sufficient to recommend manslaughter
prosecution of Airbus and/or Air France.
The new investigative judges could also rule that there are
insufficient charges to prosecute the case in a French criminal
court.
Parties to the case, including families of the 228 victims, Airbus,
Air France and the pilots' union, SNPL, are all expected to file new motions
shortly in the mass disaster court.
The original 2012 technical investigation report on the June 1, 2009
Airbus 330 crash was based on thousands of pages of documents and interviews in
Europe, Africa and South America. It paralleled a thorough French government
Bureau d'Enquêtes et d'Analyses Pour la Sécurité de l'Aviation
Civile (BEA) analysis.
The 2012 BEA report attributed the worst crash in Air
France history to multiple causes including incorrect flight director
indications, loss of angle of attack protection and display to pilots, lack of
training on how to handle abnormal air speed indication, absence of any visual
information to confirm approach to stall after the loss of limit speeds,
erroneous airspeed messages from the electronic centralized aircraft monitor
(ECAM) and an obsolete high altitude stall recovery procedure.
Some recommendations based on the BEA's analysis have been
implemented. Many others, such as airline adoption of standby Angle of Attack
indicators found on most military aircraft around the world, have languished.
After the first investigation by court appointed experts, Airbus
sought a rebuttal called a "Contre-Expertise" with a new team of experts
including just one French aviator. Lawyers representing Air France and the
Association of Families of Victims of Flight 447 wanted to appoint another
expert of their choosing from a court approved list.
Their request was rejected by investigative magistrate Zimmerman. She
ruled that adding one more expert would slow down the "urgent" case and lead to
further delays triggered by translating proceedings into all languages spoken by
victims' families residing in 32 countries from China to Brazil.
After the technical experts filed their "Contre-Expertise" highly
favorable to Airbus in 2014, the Family Association and Air France moved to
overturn it. They argued that exclusion of airline and family chosen experts
from a special Airbus 330 check ride attempting to simulate Flight 447 violated
French criminal code.
The plaintiffs argued that their experts were entitled to ride along
on the plane with the "Contre-Expertise" team. In addition the Family
Association sought additional technical investigations on unanswered questions
about the Airbus's performance after certain anti-stall protections were lost.
This request and a motion to dismiss the "Contre-Expertise" was
turned down in early 2015 by Zimmerman's successor, Investigative Magistrate
Sabine Kheris. Air France and the Family Association, which includes members
currently suing the airline for damages, appealed.
The 42 page appellate court decision released last week overruled
Kheris's order on the "Contre-Expertise." The new decision held that Judge
Zimmerman violated the right of Air France and the Family Association to include
an expert of their choosing.
In addition to nullifying the "Contre-Expertise," the ruling struck
from court records all evidence, testimony and exhibits gathered from the date
of the overruled order. All this research is inadmissible in further
proceedings. Airbus lawyers, highly critical of this decision, have said they
may appeal. The Family Association applauded the decision.
"We are pleased that the court has annulled the 'Contre-Expertise"
because it "did not comply with legal requirements," said
Danièle Lamy president of Entraide et Solidarité
AF447. "The families expect a fair trial that establishes responsibility and
sanctions the perpetrators without delay."
The Family Association is expected to ask the new judges to close the
investigation, arguing that the original 700 page technical report adequately
covers the matter. If Robinson and Aubertin agree, they could move the case to
a trial court.
Airbus can also move for a new "Contre-Expertise" in the mass
disaster court. Lawyers for the Family Association would oppose this
action.
If a move for a new "Contre-Expertise" is rejected, Airbus could
appeal. If their attorneys prevail, a new team of experts might include
investigators selected by opposing parties. As one of the attorneys representing
victim's families explains:
"Given the appellate court's decision, the Family Association and Air
France would be expected to select their own experts from a court approved list
to join the "Contre-Expertise" team. That means we would become a party to this
investigation with all the rights enjoyed by Airbus. We'd also be able to
include an expert of our choosing on any check rides or test flights. In
addition we could potentially challenge the manufacturer on every
point."
Anticipating this possibility, the family association's technical
expert, former Airbus 320 captain and union leader Gerard Arnoux, has already
prepared a five page list of new questions for the mass disaster court and
future experts. Some of these key issues have not been previously explored by
the BEA or previous court investigators.
It's possible that all of these new issues could become part of a
second "Contre-Expertise". This would open the door to new testimony, exhibits
and research. Portions of this review would challenge Airbus's position that
technical difficulties outlined by the BEA report did not contribute to the
crash.
"If a new 'Contre-Expertise' goes forward", explains the plantiff's
attorney, "we will have the opportunity to includeour expert,, submit new facts,
request additional research and ask any questions we want. None of this
happened on the first rejected 'Contre-Expertise.' Only Airbus was a party to
that investigation."
Should judges Robinson and Aubertin reject a new "Contre-Expertise"
and order the case to trial, Airbus would not have the right of appeal. If the
judges move to dismiss the entire case, the Family Association can
appeal.
Roger Rapoport, who writes regularly for Flight Safety Information, is
the author of a book on Air France 447 and the producer of the feature film,
Pilot Error. https://vimeo.com/110034584
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