1. The four challenges of a judicial investigation in cases involving aviation accidents
1) The conceptual challenge
Here, we are faced with the clash between “Blame culture” and “Just culture”.
In countries that were originally Catholic, there is still a need for the Devil. Even if the
faithful have deserted the churches and the Devil has fled with them, he can still be found
lurking in the courthouses.
A major disaster is a manifestation of evil, and hence the work of the Evil One. The person
or persons who committed the sin that lies at the root of the disaster must be found—someone
has to be punished.
This is the role of the judicial criminal investigation, which is ordered in France whenever an
aviation accident occurs.
The conceptual difficulty lies in the fact that unlike judicial criminal investigations, safety
investigations are not driven by the need to find a scapegoat. As in many other areas besides
aviation, the purpose of a safety investigation is to identify the causes of the accident, in order
to prevent it from happening again. Safety investigations focus on the flaws in a system, only
some of which are represented by human error.
The first conceptual challenge is that the conduct of a criminal proceeding is difficult to
square with all of the requirements that must be met for a civil aviation safety system to
operate.
If the feedback that is the cornerstone of the safety system is criminalized, the feedback will
dry up. In that case, the judicial investigation will produce a result that is the exact opposite
of what it had hoped to achieve—safety will be undermined, rather than enhanced.
Finally, if due to cultural considerations, a safety investigation only ranks second in
importance to a judicial investigation, a second disaster may soon follow on the heels of the
first. The courts and safety investigations operate according to totally different timetables,
and unless the causes of an accident are investigated immediately, the same thing can happen
again.
That is what happened in the crash of a Heliwest Gazelle on May 28, 2001 in Italy. The
technical inspection of a part (bundle N977) was delayed by almost a year while the court
completed its own expert proceeding.
Because of the failure to determine the causes of the first accident, a second accident
occurred in Great Britain six months later, on November 16, 2001, involving the same model
of aircraft, a Gazelle owned by the British Ministry of Defence.
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2. Thus, the conceptual problem poses a major challenge. How can the courts be allowed to
play their appointed role? How can the security investigation be allowed to play its own,
crucial role? This is the issue that the European Regulation of October 22, 2010 attempts to
resolve. There is no doubt that applying that regulation is going to cause problems in
countries with a Latin culture.
2) The technical challenge
The judicial criminal investigation believes that it should take precedence, while the safety
investigation, which is international in scope, is characterized by a level of competence that
cannot be found anywhere else.
However, since the dominant judicial investigation wants to be first in line, it wishes to rely
on its own tests and analyses and, in accordance with the practice in Latin countries, brings in
court-appointed experts who, as a general rule, are necessarily less able than the experts in a
safety investigation.
From a technical standpoint, the challenge takes the form of competition, generated by the
judicial criminal investigation’s claim that it must take precedence over the safety
investigation.
The fact that safety investigations are not designed to feed information to judicial criminal
investigations leads to the creation of two bodies of investigators: the judicial investigative
team, including but not limited to the gendarmerie, and for the safety investigation, the
aviation accident investigation boards.
This competition is utterly pointless, and dangerous.
The task of the court-appointed expert is to provide information in the criminal investigation,
which means to find what sins were committed, while the purpose of a safety investigation is
to identify the causes of the accident, and analyze the relevant systems in order to improve
them.
The technical challenge is virtually insoluble unless the courts agree to allow the criminal
investigation to take second place, on the theory that it is more important to prevent accidents
from reoccurring than to punish individuals who made mistakes within a system which, by
definition, has failed whenever a disaster occurs.
3) The legal challenge
In a number of countries, including France, the conceptual challenge and the technical
challenge are exacerbated by a legal challenge: the existence of third-party plaintiffs who
represent the victims, and sue for damages (“civil parties”).
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3. Although this legal mechanism is completely unknown in common law countries, it is very
well known in France, where it results in two overlapping proceedings.
First, there is the criminal prosecution by the State, which is handled by the district attorney.
In addition, however, there is also a private prosecution by the lawyers of the civil parties—
private individuals who are victims of the accident, and associations that represent not only
private individuals, but also some share of the public interest.
In France at least, civil parties bring considerable pressure to bear on judicial criminal
investigations—first, when the investigation is ordered, and then, on how the investigation is
conducted.
Today, the victims’ chief concern is still to identify the sin that was committed, and find the
sinner.
The existence of civil parties fuels the conceptual challenge and the technical challenge, and
makes an appropriate solution even more difficult to find.
Thus, after 17 long years, the Mont Sainte-Odile crash—a major aviation disaster in France
with 82 dead culminated in the acquittal of all of the accused.
Why did it take so long ? Because, under pressure from the civil parties who were victims of
the crash, the Prosecutor decided to institute criminal proceedings, and the Investigation
judge was then unwilling to discontinue them, even though no specific error could be
identified—the disaster was caused by a navigational error, or by deliberately bringing the
plane down too fast, or by a mistake in the use of an instrument.
Which leads us to the fourth challenge—the political challenge.
4) The political challenge
In modern democracies, the bonds that knit societies together tend to weaken and become
strained.
They are only renewed by high-profile events that bring people together, such as major
sporting events.
They are also renewed, however, by major disasters, which generate solidarity and feelings of
compassion for others.
Disasters make people feel that “we are all in this together”.
When disaster strikes, governments are forced to act, and express solidarity with the victims.
This political phenomenon provides additional fuel for the infernal machinery described
above. Since the victims are trying to identify the sin and finger the sinner, governments
encourage them in their efforts.
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4. The criminal justice system is responsible for giving the victims satisfaction. That is why
criminal proceedings are systematically instituted even before the civil parties and the victims
make their appearance.
And the district attorneys feel encouraged to demonstrate their solidarity with the victims and
their claims.
The conceptual, technical and legal challenges are thus exacerbated by the political challenge.
Conclusion
In France, these four challenges at the same time represent a cultural challenge. It is going to
be very difficult to find a satisfactory solution to the problems created by judicial criminal
investigations.
It may well take 30 years for the situation to change. But this can only happen if there is a
political transformation, when the leading victims’ associations finally understand that the
public interest which they claim to represent will be better satisfied by a “just culture” than
by a “Blame culture”.
This means, first, that priority must be given to compensating victims as fully and as swiftly
as possible, and second, that individual actions motivated by a desire for revenge, must be
wisely replaced with a system-wide approach.
And perhaps some other venue than the criminal courts will have to be found to deal with
aviation accidents in the open, and explain what happened to the victims and the public.
We must accordingly meet and discuss with victims’ associations, so that they can be the
ones to transform the political problem, and impel governments and the courts to allow the
criminal justice system to step back and give priority to a system-wide approach.
That is the final challenge—an almost philosophical challenge to which it will doubtless be
much more difficult to find an answer.
The final idea is not to create a global immunity for people working in Aviation. It’s just to
avoid the criminal investigation to jeopardize the safety inquiry and to avoid automatic
criminal cass that are not reasonnable but dangerous for safety.
Daniel Soulez Larivière
Mars 2011
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