Roderick D. van DamHead of Legal Service, EUROCONTROL

ICAO-COPAC International Safety Seminar

European Organisation for the Safety of Air Navigation

JUST CULTURE and CRIMINALISATION:

WE or THEM?

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Criminalisation of Aviation/ATM

Criminalisation: Wrong term for a serious problem Balance between two goals:

Enhancing Safety and Administration of Justice No Extremes:

No immunities from Prosecution No misuse of Prosecution/Judicial Powers

Resolve at the root: Protect reporting/investigation process Establish prosecution policy

Just Culture Concept (By Any Name……)

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Concept of Just Culture

Gross Negligence or Willful Misconduct

Actions, omissions and decisions expected from someone with your level of training and experience

Not tolerated

Not prosecuted

BUT WHO DRAWS THE LINE ?

Just Culture Task Force - EUROCONTROL

• Participants from: States, European Commission, EASA, IFATCA, ERA, ECA, Accident Investigation Boards, National Prosecutors, CAAs, ANSPs, NTSB and ICAO

• Think Tank on Just Culture, est. 2009

• Adopted “Model Policy regarding criminal investigation and prosecution of criminal offences further to the reporting of civil aviation incidents and accidents”

Model Policy

• Model Policy inspired by current practices in the Netherlands and the UK

• Dutch Ministry of Justice - December 2006 - “Instructions with regard to criminal investigation and prosecution in the event of reporting of occurrences in civil aviation”

• UK Code for Crown Prosecutors, issued by the Crown Prosecution Service. Guidelines regarding the “Conduct of Prosecutions by the CAA as a Prosecutor”

Model Policy

• Main objective is “to provide directions regarding the criminal investigation and prosecution of potential criminal offences resulting from aviation accidents or that come to the attention of prosecutors through the reporting of civil aviation incidents.”

• Model - Worded in such a way that it can be supplemented or adapted to reflect national specificities

• not mandatory, no template for regulation

• ‘if and how’ of national implementation is a decision for States, and in particular for the national Judiciary

Main Features

•Applies to the criminal investigation and prosecution of criminal offences resulting from civil aviation accidents as well as from incidents reported under mandatory reporting scheme

•Addresses prosecutors

•provides directions with respect to three main areas

Main Features

1. CONTACT/ COORDINATION

Coordination between safety investigation bodies and judicial authorities (in line with EU regulation No 996/2010)

2. EVIDENCE

• Protects incident report, accidents and incidents reports done under ICAO Annex 13 and witness declaration done in the context of those reports

• Not to be used by a prosecutor as evidence

Main Features

3. PROSECUTION

• Nothing should prevent criminal prosecutions in the event of intentional wrongdoing or gross negligence.

• BUT also instructs prosecutors that no prosecution will be brought against individuals for actions, omissions or decisions which reflect the conduct of a reasonable person under the same circumstances, even when those actions, omissions or decisions may have lead to an unpremeditated or inadvertent infringement of the law

Way Forward

• seek endorsement of EUROCONTROL Member States

• In line with EU Regulation No 996/2010 – notion of “advance arrangements”

• Relevance in context of Just Culture Key Performance Indicators (Performance Regulation)

• Key will be adoption at national level

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US and THEM

• What is being done?• Common Aviation Prosecution Policy in Europe• HLSC, Assembly 37 in 2010 and follow-up in

and by ICAO• IFATCA/EUROCONTROL Training Initiative on

Prosecution Expert Pool

• Ongoing EUROCONTROL input• European JC Task Force• Education and Support

• Finally:

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Criminalisation of Aviation/ATM

IT TAKES TWO TO TANGO