Conflicts and approaches to solutions
The interplay of the different areas of the law and their effects on a Just Culture are complex. An effective safety management system involves different areas of the law. Their interaction must be taken into account if a Just Culture is to be established. The main conflicts can be divided into two legal areas.
Conflicts in law
The existing conflicts between the principles of a Just Culture in Swiss aviation and the Swiss legal system can basically be divided into two main areas: those relating to criminal law (the punishment of individuals) and those relating to public law (the interaction of safety and criminal investigations).
In criminal law
Aviation systems today are so complex that an incident cannot be attributed to a single act, cause or individual. If individuals are prosecuted for actions that are neither grossly negligent nor wilfully intentional, this weakens the reporting culture and thus an organisation's ability to identify weaknesses and make adjustments.
By convicting an individual in the system, we do not prevent the same incident from happening again to another person.
In public law
In the cases mentioned, the results of the safety investigation were subsequently misappropriated and used for prosecution. This raises the question: what kind of state supervision can be used to increase safety in this context?
For a sustainable Just Culture, the separation of safety investigations and criminal investigations is indispensable.
Our solution proposals
In dialogue with representatives of the judiciary, the political world and the scientific field, we work for the professional and coordinated implementation of a better acceptance and integration of the Just Culture concept in Switzerland. This dialogue goes beyond national borders.
Dialogue with legal experts
The European Organisation for the Safety of Air Navigation Eurocontrol has set up a Just Culture Task Force (JCTF) for developments in this important safety area. Since 2007, the JCTF has been promoting debate on the legal issues relating to safety and justice, to support the dialogue between safety and legal experts and to develop relevant guidance and guidelines. The JCTF is composed of security experts and lawyers from the aviation, rail and maritime sectors.
In concrete terms, a specific training programme was developed within this framework several years ago. The aim of this is to promote understanding between a Just Culture (learning from incidents) and the complexity of aviation on the one hand, and the requirements of the judiciary (following the law, investigating violations) on the other. We are convinced of the rightness of this approach, and will continue to pursue it.
Dialogue with politicians
See political initiatives
Dialogue with scientific experts
We are striving to secure an exchange of knowledge with various universities. In addition, a scientific study should provide the basis for a holistic and more precise assessment of the points of conflict here. This study will be conducted in collaboration with the University of Applied Sciences of Northwestern Switzerland (FHNW) and the Zurich University of Applied Sciences (ZHAW).
Explanation of the conflicts
1. Conflicts under criminal law
Negligence and gross negligence
Criminal law does not explicitly distinguish between negligence and gross negligence (Art. 12 Para. 3 SCC); the degree of negligence is only taken into account in the sentence. Just Culture, on the other hand, excuses simple negligence and sanctions gross negligence. This is because a simple action or omission that leads to a work error is seen as part of the system. The more resilient the system, the more it is able to absorb such work errors. The principle that simple negligence is accepted within the framework of Just Culture forms the basis for systemic learning. Criminal law, on the other hand, regards even simple negligence or breach of duty of care as a punishable act or omission. This results in an imbalance between the application of Just Culture in the aviation industry as a basis for organisational learning and the stricter negligence provisions under criminal law.
Negligent interference with public transport
In 2019, two sets of criminal proceedings against air traffic controllers for negligent interference with public transport (Art. 237 in conjunction with Para. 2 SCC) were concluded by Federal Court decision.
Art. 237 Interference with public transport
1. Any person who wilfully obstructs, disturbs or endangers public transport, specifically transport by road, by water or by air, and thereby knowingly endangers the life and limb of persons, shall be liable to a custodial sentence not exceeding three years or to a monetary penalty.
If the offender thereby knowingly endangers the life and limb of multiple persons, a custodial sentence of one to ten years may be imposed.
2. If the offender acts negligently, the penalty is imprisonment for up to three years or a fine.
In the first case, the Federal Criminal Court's conviction was upheld by the Federal Supreme Court against the air traffic controller on duty (6B_1220/2018). In the other case, however, the air traffic controller was acquitted because the Federal Supreme Court did not recognise any concrete danger or interference with public transport (6B_332/2019) and stated that no conviction could be based on hypotheses.
Criminal proceedings opened based on safety investigations
Both criminal proceedings were opened based on the results of the safety investigation by the STSB. These in turn were based on the reports of the air traffic controllers involved. Furthermore, both decisions exacerbate an existing problem of a supervision that is "compliance-based": the reporting of such and other incidents is essential to the ends of a Just Culture and organisational learning, but the possible prosecution threatens to discourage future such reports.
2. Conflicts under public law
Legislation and ordinances typically provide for supervision. In high-risk industries in particular, the safety system and organisation are also controlled (cf. EKAS Guideline No. 6508). The compliance-based approach is thus qualified to a certain extent in practice, since in many areas the authorities rely on safety evidence provided by the supervised parties themselves, using private standards or industry agreements as a basis.
In the field of public law, the main question is therefore what kind of state supervision can be used to implement safety in this context and how such supervision should be designed so that a Just Culture is promoted and not undermined by the legal handling of safety-relevant reported events.
This is not only a national issue but, in the context of global aviation, also a topic in internationally applicable public law:
- the International Civil Aviation Organisation (ICAO) with Annexes 13 and 19.
- EC Regulation 376/2014 (Regulation (EU) No 376/2014 of the European Parliament and the European Council of 3 April 2014 on occurrence reporting, analysis and follow-up in civil aviation).
- EC Regulation 996/2010 (Regulation (EU) No 996/2010 of the European Parliament and the European Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation) and its interpretation as adopted into national law.
At both the ICAO and the European level, a separation between safety investigations and criminal investigations is provided for and enshrined in law. The framework law here is the Swiss Federal Civil Aviation Act of 21 December 1948 on Civil Aviation (CAA; SR 748.0). This is implemented in the Ordinance on Aviation of 14 November 1973 (LFV; SR 748.01) and in various other ordinances. International law supersedes national law.
In this respect, Switzerland has only partially implemented the international regulations. The Swiss Federal Civil Aviation Act (SR 748.0) and the Ordinance on the Safety Investigation of Transport Incidents (OSITI) (SR 742.161) explicitly provide for cooperation between the law enforcement and safety investigation authorities. The majority of the aforementioned rulings are based on the investigation reports and the associated safety investigation files. International legislation, in particular Regulation 996/2010 and ICAO Annex 13, require a so-called "balance check", in which a balance is struck between increasing safety and the public interest in prosecution.
Data and other information provided for the purpose of increasing safety (in the sense of nemo tenetur) are subsequently misappropriated and used for criminal prosecution. The fact that a respondent can prevent the disclosure of their statement to the criminal authorities (Art. 24 OSITI) offers only superficial protection. The statements are included in the final report, which is available to the court as evidence. Furthermore, data and information made accessible by organisations do not fall under the protection of Art. 24 OSITI.
In the Netherlands, the Attorney General has issued an instruction allowing coordination and cooperation between the law enforcement agency and the aviation industry (air traffic control, Amsterdam Airport, airline KLM). Incidents are discussed jointly and examined for their need for prosecution. Just Culture is an element here that is included in the decision to open proceedings. The authority of the Public Prosecutor's Office is not undermined in any way, as the decision whether or not to open proceedings remains solely with the Public Prosecutor's Office. Link to the Instruction of the Attorney General: