1. Introduction

Following an aviation accident or serious incident, normally in most of the country two parallel and separate investigations are conducted, namely safety (technical) and judicial (legal) investigation. Each investigation has a clear and specific objective, but different purpose. In the legal sphere which is called criminalization of aviation, is apportioned to blame or liability. Whereas in the aviation community and in the interest of safety, emphasis is given to the causation and prevention not apportion to blame. How the criminalization of aviation accident can negatively affect to flight safety?

2. Description
2.1 Criminalization Investigation

There is no official definition of criminalization investigation. This usually happens following an aircraft accident, where the police pursue inquiries in order to establish whether there is sufficient evidence to justify criminal proceedings if there are fatalities or facility damage. It is rather a judicial investigation or prosecution applied to aviation accident in apportion to blame or liability in the form of damages (compensation) or punishment (accountability).

The safety investigation is conducted in accordance with ICAO Annex 13, which contains international standards and recommended practices for the investigation of aviation accidents and incidents. It is clearly stated that the sole objective of the investigation of any accident or incident shall be the prevention of accidents and incidents and not the purpose of this activity to apportion blame or liability¹. This approach is entrenched by both Annex 13 and EU Directive 94/56, which lays down the principles governing the investigation of civil aviation accidents and incidents within the European Union (Sofia and Mateou 2010). Both these legal instruments stipulate that the main objective of investigating an aviation accident is to undertake an investigation for the sole purpose of identifying all the circumstances that led to the accident, in order to facilitate safety recommendations to prevent similar accidents in the future. This technical investigation is non-punitive in nature, and the accident scenario and sequence of events leading up to the accident are derived from the facts collected.

Honestly, no aviation personnel are intended to create an accident. But accident occurs as a result of an undesirable chain of events. The accident  will not happen if the chain is broken to disconnect the events. Once incident happens, the investigation as a reactive action is required to find out the root cause and preventive measure. The aviation industry has been learning more than 100 years to improve its safety by investigating the accident and take necessary measures. One of the most valuable tools in practice for the improvement of safety is the ability to learn from mistakes. 

Recent years have shown a growing concern about criminal investigations and prosecutions of aviation professional in major air disasters on a global scale where in the last 9 years, criminal proceedings have been commenced to the following commercial aviation accidents: Helios Airways Flight 522 near Athens (Greece) on August 15, 2005; the Garuda Indonesia Airways Flight 200 accident at Yogyakarta Airport (Indonesia) on March 7, 2007; TAM Airlines Flight 3054 at Sao Paolo Congonhas Airport (Brazil) on July 17, 2007;; and the Atlasjet Flight 4203 accident near Isparta, Turkey, on November 30, 2007; The Spanair Flight 5022 accident at Madrid Barajas Airport on August 20, 2008; the Air France Flight 447 accident over the Atlantic Ocean on June 1, 2009 (Nemsick and Passeri 2012). 

Legal aspect of criminalization of investigation is covered in ICAO Annex 13², where coordination of investigation with judicial authority is possibly needed. However, on the other hand it ensures full independent in the conduct of the investigation done by the investigator assigned from authority. In other word any judicial proceeding to apportion blame or liability should be separated from any investigation as the sole purpose of an accident or incident investigation is to find the root cause and not apportion to blame. Further to ICAO annex 13, the disclosure of safety information may be allowed when the appropriate authority for the administration of justice in that state determines that the disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigation. In view of this background, the problem arises that the right of decision-making granted to the appropriate authority implies a subjective discretion as to when disclosure outweighs the adverse impact of non-disclosure on aviation safety. As a consequence, this provision creates uncertainty by leaving the final decision on the disclosure to the national authority for the administration of justice. 

Sensibly, the person who is judicially prosecuted is those who committed to the criminal offence. Similarly with regard to aviation accident the aviation personnel can be held with criminally liable when their behaviour constitute a criminal offence and act in a culpable manner. Otherwise, the legitimacy of the judicial authority to investigate and prosecute at the extent of aviation safety may not be justified.

On 7 March 2007, a Boeing 737-400 operated by Garuda Indonesia Flight 200 crashed in Indonesia following landing at high speed, overran the runway and hit an embankment at the end of the runway before bursting into flames left 21 passengers killed and 12 seriously injured, however the captain and the first officer survived (Togeler n.d). Following the investigation the cause determined by the Indonesian National Transportation Safety Committee (NTSC), was the crew failed to reject an un-stabilized approach in accordance with the company procedure, the captain’s failure to follow the first officer’s repeated calls to go around and he ignored 15 times the Ground Proximity Warning System alerts³. These causes clarify that the pilot’s behaviour goes beyond a simple human error towards gross negligent. The captain was therefore arrested and sentenced to two years in prison; however, in September 2009 the High Court in Yogyakarta acquitted the captain in its appeal decision due to a lack of evidence⁴. Consequently the prosecution had failed to legally and convincingly demonstrate guilt and therefore the defendant's rights, position and status should be restored.

The example above, Garuda Flight 200 gives a clear illustration on the difficulty of convicting the pilot even when the causes of the accident determined in the investigation report clearly indicate gross negligent pilot's behaviour on ignoring a series of warning prior to landing. However, in many instances, it was not possible to prove gross negligence or even intent to justify a conviction.

2.2 Impact on Flight Safety

As the safety has been evolving since 100 years ago, starting from technical era, human factor era and we are now in the organization era. In this latest era, safety is viewed from the system perspective, considering the impact of organizational culture and policies on the effectiveness of safety risk controls against the human and technical factor⁵. The effective way to promote safe operations is to ensure safety environment has been established within an organization so all employees feel that safety is belonged to everyone and it's everyone's responsibility. It is also agreed that effective implementation of safety management system completely depends on a safety culture where an open reporting against safety is on a voluntary basis. The safety culture in the aviation industry now concentrates on data gathering which is not just after an accident, but as normal operation activities . This is to encourage an employee to report the impact on safety in their activity such as hazards, errors, threat and support the identification and management of all their associated risks so the hazard and risk can be identified and further mitigated before ending up to the accident. In this context, management must create an environment in which personnel are aware of and having safety sense. In return a sufficient protection is given to them when they divulge safety information through the safety reporting system. An effective safety culture serves as a method to synchronize the safety objective within the organization.

With the philosophy of safety culture the presence of criminal proceedings has an extreme impact on employee where the employees are feared to contribute on safety investigation and the further development of aviation safety through the reporting system. This leads to insufficient available safety information which may have serious consequences, considering that one of the most effective tools to advance safety is the ability to learn from previous mistakes and to prevent its recurrence. Consequently, risks may or may not be identified or addressed and potentially lead to accidents. Repetitive accident may also occur.

ICAO gives guidance that the implementation of Safety Management System is determined by a clear, mutual understanding of errors and violations and the differentiation between the two. The difference between errors and violations lies in intent, while an error is un-intentional; a violation is a deliberate act or omission to deviate from established procedures, protocols, norms or practices⁶. In the context of an SMS, both the state and the product or service provider must understand and expect that humans will commit errors regardless of the level of technology used, the level of training or the existence of regulations, processes and procedures. The important goal is therefore to set and maintain defences to reduce the likelihood of errors and, just as importantly, reduce the consequences of errors when they do occur⁷. As such, to effectively accomplish this task, errors must be identified, reported and analysed so that appropriate remedial action can be taken.

3. Conclusion

In addition to the technical investigation, a judicial investigation subsequent to an aviation accident is carried out in order to determine who made mistakes or responsible for the accident, and to assign blame and apportion liability to the guilty party. It is a punitive approach, which normally focuses on a conclusion supported by the facts and evidence gathered during the investigation. This approach aims to satisfy the many different interested groups after an accident by allowing the injured party to obtain compensation by imposing civil liability, as well as satisfying society’s needs, by determining criminal blameworthiness.

Criminalization investigation has a negative impact on the safety concept of just culture that supports learning from safety occurrences in order to improve the level of safety awareness. As criminalization investigation exists, people are afraid to report safety related case that may lead to less reporting and resulting in more incident and accidents followed by judicial proceedings. Criminalization investigation is also in contradiction with a safety investigation objective which is to learn from accidents and incidents, and to take appropriate remedial actions to prevent similar occurrences. Therefore the investigation process requires an effective safety occurrence reporting system, which are reported and documented comprehensively by aviation personnel.

Nevertheless, there is no doubt that a criminal investigation and prosecution are appropriate when there are clear evidences of intentional conduct, but in cases where there are no indications of intent to endanger aviation safety, it cannot be justified for liability. Most of the criminal proceedings after an aircraft accident often face the problem of not having enough evidence to prove the required degree of culpability to convict aviation professionals.

Reference: 

1. Judith Nemsick and Sarah Gogal Passeri(2012), Criminalizing Aviation: Placing Blame Before Safety (online)  (25 February 2014)
2. Mildred Trögeler n.d, Criminalisation of air accidents and the creation of a Just Culture(online)(28 February 2014)
3. Sofia and Mateou 2010, Flying in the Face of Criminalization (online) (26 February 2014)

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¹ ICAO Annex 13, Tenth Edition July 2010,Chapter 3, Page 3-1 
² ICAO Annex 13, Tenth Edition July 2010 Chapter 5 Page 5-4)
³ NTSC (2007) Report No. KNKT/07.06/07.02.35 available from <http://www.skybrary.aero> (01 March 2014) 
⁴ News.com.au (2010),Appeal Lodged After Garuda Pilot Acquitted(online) (01 March 2014)
⁵ ICAO SMM Doc 9859 3rd Edition 2013, Chapter 2 Page 2-2 
⁶ ICAO SMM Doc 9859 3rd Edition 2013 Chapter 2.5 Page 2-8
⁷ ICAO SMM Doc 9859 3rd Edition 2013 Chapter 2.5.3 Page 2-9