One missing piece of the discussion is the CAA's themselves, outside of their accident investigator roles. Some jurisdictions have independent investigative bodies, separate from the CAA'
Most advanced countries have their own laws regulating NTSB's/AAIB's/CIAIAC's/BFU's... as fully independent from their respective FAA's/CAA's/DGAC's/LBA's...following the spirit of Annex 13.
As far as airline management is often concerned, it is almost always a risk vs cost analysis and mostly... cost rules.
In none of the three pax airlines I have worked for that was the case (which is not to say it does not happen elsewhere). Even if you only look at costs, most airlines cannot literally
afford to have an accident. That is not to say they are willing to spend on everything that improves safety: the balancing reference (how do you know how safe you are?) is the rules...most of us try to go beyond.
Consider this example: You caught a thief stealing from the bank and he gave you his modus operandi, while one would take action to prevent recurrence, the thief will be punished for his offence.
The key is HOW you obtained his modus operandi. He has a right not to tell you, though you may find out some other way. If he told the police, fair enough, but if the police obtained such knowledge from an illegal recording, then...read on
Bear in mind that ICAO isn't regulatory. It's a convention. EASA/JAA is regulatory. The FAA is regulatory. CAA is regulatory. ICAO is not. It's more of a standard without teeth...the teeth being provided by each signatory.
That is why most advanced countries have laws enforcing ICAO rulings. Spain's Air Safety Law (LSA) , Air Navigation Law, EASA's regulations and others do enforce most of ICAO's ruling. EU directive
94/56/EC (though subject to national ruling, like Spain's LSA) basically mandates Annex 13.
Spain's LSA explicitly contemplates the ICAO Annex 13 ruling, but unfortunately tints the Annex 13 gray area ...
The State conducting the investigation shall recognize the need for coordination between the investigator-in-charge and the judicial authorities...
...even grayer, by mandating that (my translation)
the Accident Investigation Board shall communicate to Judicial Authorities any signs of criminal responsibility found during the course of their investigation
I wonder what other EU countries' own ruling relative to EU directive
94/56/EC and Annex 13 say in this respect.
If negligence is involved, then the fact that a safety investigation is in progress shouldn't hinder, nor prevent justice from taking it's course
I think nobody posted to the opposite in this thread. To me the key is not that justice must not take its course, but HOW it does it.
A pilot that takes off on the wrong runway, fails to properly configure or use a checklist, or do other acts of willful or inadvertant negligence is certainly not immune from prosecution of civil tort.
I do not think anybody in this thread is asking for immunity, plse read on...
In my view, this is a just safety culture, it encourages open reporting, but is not a blame free culture. I do not expect immunity.
I do not expect it either...I just expect that I have the same rights in the judicial system as any other citizen
In Australia the TSI Act gives specific protections to the information provided to the ATSB investigators to the point that any information provided cannot and will not be used against you.
I wish Spain, France and other countries followed suit! See above comment on Spain's LSA! I think we should unite to get there.
No-one will be fully honest with the investigators if they believe that what they say can be passed to the local prosecution service and used against them. Hence the necessary information needed to prevent recurrence will be - at best - 'tarnished'.
Good point! It is not only not dishonest not to tell the judicial system all that you know that could help prosecute you, but also a fundamental right:
(Please forgive my imprecisions as I am not a legal expert)
Most of our judicial systems accept that they are subject to error. They accept that no matter who presents facts for judgement, facts will be biased one way or another by man's nature (judiciary systems are a very early case of human factors study and error prevention).
As a solution, they base themselves on a balancing act where two (or more) parties are allowed to present their cases as they deem appropriate within certain rules. The resolution of the process depends on a sometimes delicate imbalance in one or the other direction.
Because of the mentioned susceptibility to error, our legal systems prefer to err on the side of
'not condemning the guilty' rather than
'condemning the innocent', and, as a result:
-An individual is innocent until proved guilty
-Evidence that has been obtained violating fundamental rights (illegal recordings...) is not acceptable
-You have a right to not to testify against yourself
Violating any of these rights tilts the mentioned delicate balance against the prosecuted.
Not that I think this system is particularly good, but I am not an expert and cannot come to suggest a better process, which would be beyond this post anyway.
In that case, we aviation professionals deserve (at least!!) the same treatment as a murderer (or thereof accused).
In order to be able to use as valid evidence a (non public) recording of the voice of a murderer it must have been obtained with judicial permission or with prior notification that it could be used against him in a criminal case.
Police cannot interogate him wihtout letting him know his words can be used against him.
It should be the same for us:
-National laws should clearly state that FDR's and CVR's can be used in criminal cases, or otherwise they should not be used. This is more of a theoretical point.
-While physical evidences could be the same for both investigations, evidences and testimonies supplied to the Investigation Board by professionals with responsibility on the event, should not be used by the judicial investigation.
-Investigation Board analyses and conclusions should not be used by the judicial investigation.
In summary: the same wording that those
down under seem to have in their laws should be adopted by our
northern countries.
Thx for the great points!