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der flugleiter 2009/03<br />

Safety<br />

18<br />

Safety Justice<br />

remedial action to the system that ATM requires a<br />

mandatory incident reporting system and a voluntary<br />

reporting system in order to improve the current system.<br />

Some of these incidents are even investigated<br />

by several Accident Investigation Boards following the<br />

Annex 13 recommendations of ICAO. These investigations<br />

have to take place under the umbrella of a Just<br />

Culture philosophy which can <strong>als</strong>o be defined as a<br />

cornerstone in the process of Organizational learning.<br />

This just culture is defined by IFATCA/EUROCONTROL/<br />

ECAC as: A culture in which front line operators or<br />

others are not punished for actions, omissions or decisions<br />

taken by them that are commensurate with<br />

their experience and training, but where gross negligence,<br />

wilful violations and destructive acts are not<br />

tolerated.<br />

Just culture as a means to achieving the ultimate goal<br />

to have a safety system which is one of constant improvement<br />

facilitated by a free flow of safety information<br />

with the objective (next to an increase of safety<br />

information and an antidote against nil reporting system)<br />

to achieve a balance between the interests of<br />

safety (e.g. protection of safety information) and those<br />

of a proper administration of justice. This is when<br />

we have discovered that reporting for an ATCO is a risky<br />

business as it can lead directly to appearing in front<br />

of a prosecutor and legal investigation for a wrongdoing<br />

at the penal code level.<br />

Why accident investigators prepare the ground for<br />

criminalization of operational staff?<br />

Like in an accident some of the incidents IFATCA has<br />

been involved in have found out that the accident investigators<br />

–sometimes lack sufficient ATM knowledge<br />

or do not have any basic systemic safety approach<br />

in the way they are conducting the investigation.<br />

Many of the reports of the AAIB are written in a judgmental<br />

way – which are then used in those terms (or at<br />

least consulted by the prosecutors). All this is of<br />

course not foreseen in Annex 13, neither in the attachment<br />

Echo of ICAO – however it is a trend we were able<br />

to recently observe.<br />

ATCOs are being «ordered» by rules and procedures to<br />

report incidents, to give interviews as witness to the<br />

AAIB and to find themselves then accused for a crime<br />

(such as endangering public transport, or other penal<br />

code articles – depending on the gravity of the accident<br />

or incident), which they have, through their testimony<br />

(in good faith) to the AIIB investigator given–<br />

ammunition to have them indicted. Mind boggling!<br />

Proper training of Investigators<br />

and court expert needed?!<br />

IFATCA has found out that most of the AAIB around<br />

the world, lack sufficiently well educated and trained<br />

ATC investigators, which have learned what it means<br />

to look at an incident from a systemic point of view.<br />

Further, IFATCA is amazed to see that around the world<br />

that states ignore Annex 13 fundament<strong>als</strong> and prosecutors<br />

are allowed to use the AIIB reports for their investigations,<br />

maybe stemming from the fact that data<br />

from safety investigation are evidence and judicial investigation<br />

will use this evidence. (see Dutch Safety<br />

Board’s first publication after the crash of the Turkish<br />

aircraft in Amsterdam).<br />

When confronted with court tri<strong>als</strong> – IFATCA has been<br />

amazed in some cases to see – who is acting as ATC<br />

experts of prosecutors/court. In other cases these experts<br />

have never visited an ATC facility and do not separate<br />

reality from the movies i.e. what they have seen<br />

in the film called «Pushing Tin». IFATCA believes that a<br />

proper training is needed for ATC experts (including<br />

specialist aviation lawyers – or specially trained AT-<br />

COs) in both the investigation teams but <strong>als</strong>o in the<br />

case of a prosecutor or a court needing ATC expertise.<br />

These people have to be trained and understand the<br />

systemic safety approach otherwise we will continue<br />

to see an increase of incident reports being transferred<br />

to a prosecutor or lead to condemnation based on<br />

judgmental behavior of these so called experts.<br />

Conclusion<br />

There is a need to be sure that the future performance<br />

based ATM system does not increase the criminalization<br />

of front end operators for the purpose of performance<br />

measurement. ATCOs do not go to work to<br />

commit a crime. They are striving to do the best in any<br />

given situation. The systemic approach to the current<br />

and future ATM system is clearly indicating – that if<br />

high risk or complex system do fail – it is a failure of<br />

the system and not a failure of an individual. If you<br />

end up with the conclusion that the reason for an incident<br />

was Human Error then this will not be the end it<br />

will be the starting point for an investigation as there<br />

is deeper trouble inside the system (Dekker). A court<br />

case will not always improve safety neither will it be<br />

always just. To avoid any kind of cut and dried opinions<br />

get us at least a recognition of the potential misrepresentation<br />

and or miscarriage of justice of the<br />

ATCO by having processes in place that ensures that<br />

fairness in representation by competent persons is in<br />

place.

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