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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