Criminalization
of Aviation: 'You Have the Right to Remain Silent'
In Managing the Risks of Organizational Accidents (1997), Dr. James Reason
defined "just culture" as:
An atmosphere of trust in which people are encouraged, even rewarded, for
providing essential safety-related information-but in which they are also clear
about where the line must be drawn between acceptable and unacceptable
behavior.
While line drawing often involves sensitive tradeoffs and judgments, recent
judicial decisions by the courts in Switzerland involving air traffic
controllers provoke vigorous head-scratching, not to mention strong
condemnation from the international air traffic control community.
Article 237 of the Swiss Penal Code (Disruption of public traffic) subjects
"[a]ny person who wilfully disrupts or endangers public traffic ... and as
a result knowingly causes danger to the life or limb of other people is liable
to a custodial sentence not exceeding three years or to a monetary
penalty." The provision also provides that "[i]f the person concerned
acts through negligence, the penalty is a custodial sentence not exceeding
three years or a monetary penalty."
In April and December 2018, two Swiss air traffic controllers were convicted by
the Federal Penal Court and the Cantonal Court of Zurich, respectively, for
operational incidents that did not result in any physical damages or injuries.
The latter operational incident occurred in March 2011 - over eight years ago.
More recently, in March, a Swiss court found a controller guilty of violating
Article 237 for an operational incident that occurred at Zurich Airport in
August 2012. Again, no property damage or injuries occurred. A prosecution
initiated in 2014 that did not result in a conviction involved a Swiss
controller responsible for clearing two aircraft for takeoffs on intersecting
runways in March 2011. The first aircraft departed normally and the second one
aborted its takeoff. This incident did not result in any property damage or
injuries and the controller promptly reported the incident and no disciplinary
action was taken against the controller.
The National Air Traffic Controllers Association (U.S.), the International
Federation of Air Traffic Controllers' Association, the European Cockpit
Association, the Netherlands Guild of Air Traffic Controllers, the Guild of Air
Traffic Control Offers (U.K.), and skyguide (the air navigation service
provider that manages Swiss airspace) have each issued statements condemning
these prosecutions. Several of these statements call on Switzerland to review
these prosecutions in light of ICAO General Assembly Resolutions 38-3
(Protection of certain accident and incident records) and 38-4 (Protecting
information from safety data collection and processing systems in order to
maintain and improve aviation safety).
Despite the protests of these recent convictions, it clearly demonstrates the
need for organizations to 1) be aware of local law and 2) have local counsel
available when operating abroad.
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