Carpediem,
Originally Posted by carpediem86
you have no idea how difficult it is to follow your posts with all these details and terminology
I work with real lawyers on real aviation cases, amongst other things trying to keep real people out of jail. But my day job is with a university.
I think I can appreciate how difficult it is for people not in the field to understand complex technology. I have been in that position. My inclination is to do what it takes to understand all I have to know in order to make correct informed judgements (I am known for this, and people pay me for it occasionally). There is another way of dealing with things, followed by most experienced lawyers, which is to employ the right experts (that is where your judgement comes in) and believe (and have them transcribe for the court) what they say.
In a real court case, you would be offering ATC Watcher lots of money to say what he has to say. In a moot court, you are unfortunately faced with the first option: no matter how hard it is, you have to get your mind round the details.
[QUOTEcarpediem86]Hence if it indeed existed as such, fault could technically be attributed to the pilot who did not follow the RA, correct[/QUOTE]
That is, if I may say so, far too naive a stance for an putative aviation lawyer.
Obvious question, which should be the first one you ask as a lawyer: who has jurisdiction?
Answer: obviously Germany, since the airspace was German.
So you had better look up applicable German law. If you don't read German, you are lucky in this case in that the applicable German law is translated in the accident report from the BFU, which I may presume that you have read, as a lawyer.
You will therefore have observed that the advice about following RAs is not strictly identical with the advice in PANS-OPS 8168.
But Germany is an ICAO signatory. So which advice applies and why?
You will also observe that there is another applicable German law (which is more or less universal), which says that the airplane on the right (i.e., the Tu-154) has right of way. According to that regulation, your suggestion that
Originally Posted by carpediem86
fault could technically be attributed to the pilot who did not follow the RA, correct?
is not correct.
You're the lawyer. You sort it out.
Whoever suggested you work on this either had it in for you or thought you were a legal genius. It is certainly worth trying to sort out, but don't expect anyone here (or anywhere else) to have packaged answers for you.
PBL