Court rulings
On 27 June 2019, the Swiss Federal Supreme Court confirmed the punishment of an air traffic controller for interference with public transport (Swiss Code of Criminal Law, Art. 237) (BGer 6B_1220/2018). A short time later, on 29 October 2019, the Federal Supreme Court handed down another judgment, also concerning interference with public transport (BGer 6B_332/2019). In this case, however, the Federal Supreme Court rejected the criminal liability of the air traffic controller concerned. The two rulings seem difficult to reconcile, and also contradict European legal norms, which explicitly do not provide for criminal prosecution in the case of incidents without gross negligence or willful intent (EU 376/2014).
In both cases, the court consulted the final report of the Swiss Transportation Safety Investigation Board (STSB), despite the fact that the results of such a safety investigation should not serve to clarify questions of guilt and liability. STSB investigations are intended to gain knowledge that can be used to prevent future accidents and dangerous situations and serve to increase safety.
Overview of the court decisions
Acquittal by the Federal Supreme Court
The Winterthur/Unterland public prosecutor's office accused the defendant, as the air traffic controller responsible at Zurich Airport, of having given takeoff clearance to two commercial aircraft (ATC call signs SWR 1326 and SWR 202W) almost simultaneously on 15 March 2011, whereupon a dangerous approach with a high risk of collision occurred between the two aircraft. Had the SWR 202W aircraft initiated the takeoff run five seconds earlier and not aborted the takeoff, a collision would even have occurred, which would most likely have resulted in injury to or the deaths of multiple persons. On 7 December 2016, the Bülach District Court had acquitted the defendant of the charge of negligent interference with public transport within the meaning of Article 237(1) in conjunction with Article 237(2) of the Swiss Code of Criminal Law. On the other hand, the Higher Court of Canton Zurich, which had been appealed to by the public prosecutor's office, had found the controller guilty thereof on 4 December 2018, and had sentenced him to a conditional fine of 90 daily rates.
The appeal lodged against this ruling of the lower court was subsequently upheld by the Federal Supreme Court. The appealed decision was set aside and the case was sent back to the lower court for a new ruling on the costs.
Acquittal by the Federal Court
After two aircraft had approached each other on the intersecting Runways 16 and 28 at Zurich Airport on 22 August 2012, the STSB opened an investigation on 10 September 2012. The STSB concluded its investigation with Final Report No. 2203 on 21 January 2014.
According to the court, the accused had violated the air traffic controller's general duty of care and also the general danger principle in a foreseeable and avoidable manner by issuing the take-off clearance to the Saab, by insufficiently monitoring the final approach of the sports cruiser and by instructing the crew of the sports cruiser to turn right. He had therefore caused the objective concrete danger to life and limb of the crew of the sport cruiser in a careless manner in breach of his duty. The defendant's actions had therefore met all the elements of the offence of negligent interference with public transport within the meaning of Art. 237 Para. 1 SCC in conjunction with Para. 2 thereof.
The judgement was appealed. On 19 February 2021, the Higher Court of the Canton of Zurich overturned the verdict and acquitted the air traffic controller. He could not be proven to have acted negligently or to have disturbed public transport.
The public prosecutor's office has appealed the verdict to the Federal Supreme Court, which confirmed the acquittal.
Sentencing by the Federal Supreme Court
On 12 April 2013, two commercial aircraft approached each other in Swiss airspace. The closest distance between the two aircraft was 0.8 nautical miles (NM; 1.5 km) horizontally and 650 feet (ft; 198 m) vertically. The minimum distance required is 5 NM (9.26 km) horizontally and 1000 ft (304.8 m) vertically. The incident was investigated by the STSB.
After the investigation was completed, the Office of the Attorney General of Switzerland opened criminal proceedings. In a penalty order dated 12 December 2017, the Office of the Attorney General of Switzerland found the air traffic controller on duty guilty of negligent interference with public transport in accordance with Article 237(2) of the Swiss Code of Criminal Law. It convicted the pilot of an offence committed on board an aircraft (negligent interference with traffic) in a penalty order dated 4 April 2017. The air traffic controller appealed against the penalty order. The Federal Criminal Court confirmed the conviction on 30 May 2018. The air traffic controller appealed against the conviction to the Federal Supreme Court. The appeal was dismissed by the Federal Supreme Court on 27 June 2019.
You can find further such court decisions on the legal platform of the Foundation for Aviation Competence (FFAC)