Legal situation in aviation
There is a tension between the understanding of the Just Culture concept (learning from incidents) in the aviation system and the requirements of the judiciary (following the law and investigating violations thereof). We aim to build a bridge between these two different value systems.
Incident reports on various topics are required in aviation by law. Additional voluntary safety-related reports supplement this incident processing approach.
Various authorities and organisations are responsible for this:
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Internationally: The International Civil Aviation Organisation ICAO
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In Europe: The European Aviation Safety Agency EASA, Eurocontrol
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In Switzerland: The Federal Office of Civil Aviation FOCA
The EU regulations directly applicable in Switzerland envisage the state waiving the initiation of sanction proceedings if it becomes aware of an incident on the basis of a report within a Just Culture framework and no gross violation has occurred. Notwithstanding the applicable national criminal law provisions, Member States are instructed to refrain from initiating proceedings in the event of a non-premeditated or inadvertent breach of the law of which they become aware solely as a result of a notification under Articles 4 and 5 (EC376/2014 Art. 16(6)).
However, provisions concerning the separation of criminal and safety investigations have only been partially implemented in Switzerland and there are various contradictions in Swiss legislation and case law. The court rulings against air traffic controllers illustrate this problem.
Together with representatives of the judiciary and the academic world, we seek to create a legal framework within which a Just Culture can flourish and be pursued. In doing so, we will strive to adapt a holistic approach that pays due and full regard to various aspects of the law.