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The fiery crash last week Aeroflot flight SU 1492 at Moscow’s Sheremetyevo airport killing at least 41 people and the Russian government’s opening a criminal investigation, once again raised the ugly specter of criminalization of aviation accidents and its harmful effect on aviation safety.

I was aware of this problem for years but it was all brought home when I read Flying In The Face of Criminalization, The Safety Implications of Prosecuting Aviation Professionals by British writers Drs. Sofia Michaelides-Mateau and Captain Andreas Mateau, both lawyers.  As the authors explained, in many countries, after an aviation accident, there generally are two different investigations: the technical investigation, designed to find the cause(s) of the accident, and the “judicial” investigation, the purpose of which is to assess blame. In all too many countries worldwide, however, frequently the “judicial” investigation is criminal, potentially involving prison, rather than civil, the purpose of which is to compensate the victims of the crash.  

The problem with the criminal type of investigation arises when the conclusions of the  technical investigation are used to criminally prosecute flight crews, mechanics, and air traffic control personnel. In these cases, the judicial authorities take control of the physical evidence with the criminal investigation processes ruining the physical evidence for accident investigation purposes.  Of course, the converse is also true: when civil authorities conduct scientific examinations and destructive procedures the parts and other items can be rendered inadmissible as criminal evidence.

I agree with these authors that criminal prosecutions of individuals for omissions and negligent actions, as opposed to actions based on intent or willfulness–the usual criminal standards–are chilling and potentially dangerous.  Why would an individual faced with possible criminal prosecution voluntarily open up and tell “the whole truth?”

What to do?  Civil authorities should be given priority over the evidence.  Criminal prosecution has no place where the conduct is unintentional or simple carelessness.  

But remaining is the issue of what to do when there are violations of criminal laws (distinct from aviation laws and civil laws), such as when volatile oxygen generators were placed on the ValuJet DC-9, violating state and federal hazardous materials laws.  Do the violators get a pass simply because they committed their crimes in the aviation context? The answer has to be no and criminal process is warranted.  

Then there is the matter of government involvement in the design, construction, marketing and sale of aircraft—should governments who profit from the aircraft manufacturing industry be involved in civil, let alone criminal, investigations? One example is the Air France Airbus A320 crash demonstration crash in 1988 where the French Minister of Transportation announced, shortly after the crash and as the technical investigation had just begun, that there was no problem with the aircraft.  Later, the French BEA cleared the aircraft and found operational error, raising credibility issues since the French government was heavily involved in the design, construction, certification, and marketing of this aircraft–and in the accident investigation.  

Where an accident investigation is carried out by qualified, independent investigators, its factual findings (not conclusions) should provide the basis for post-accident remedial measures as well as civil legal actions.  Criminal prosecutions are another matter, however, and need to be addressed where criminal, causal acts or omissions are found, but not as part of the fact-finding investigation aimed at enhancing safety.    

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