Daniel Soulez Lariviere, Soulez Lariviere & Associes

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Daniel Soulez Lariviere, Soulez Lariviere & Associes

  1. 1. The four challenges of a judicial investigation in cases involving aviation accidents1) The conceptual challengeHere, 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 thefaithful have deserted the churches and the Devil has fled with them, he can still be foundlurking in the courthouses.A major disaster is a manifestation of evil, and hence the work of the Evil One. The personor persons who committed the sin that lies at the root of the disaster must be found—someonehas to be punished.This is the role of the judicial criminal investigation, which is ordered in France whenever anaviation accident occurs.The conceptual difficulty lies in the fact that unlike judicial criminal investigations, safetyinvestigations are not driven by the need to find a scapegoat. As in many other areas besidesaviation, the purpose of a safety investigation is to identify the causes of the accident, in orderto prevent it from happening again. Safety investigations focus on the flaws in a system, onlysome of which are represented by human error.The first conceptual challenge is that the conduct of a criminal proceeding is difficult tosquare with all of the requirements that must be met for a civil aviation safety system tooperate.If the feedback that is the cornerstone of the safety system is criminalized, the feedback willdry up. In that case, the judicial investigation will produce a result that is the exact oppositeof 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 inimportance to a judicial investigation, a second disaster may soon follow on the heels of thefirst. 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 happenagain.That is what happened in the crash of a Heliwest Gazelle on May 28, 2001 in Italy. Thetechnical inspection of a part (bundle N977) was delayed by almost a year while the courtcompleted its own expert proceeding.Because of the failure to determine the causes of the first accident, a second accidentoccurred in Great Britain six months later, on November 16, 2001, involving the same modelof aircraft, a Gazelle owned by the British Ministry of Defence. 1    
  2. 2. Thus, the conceptual problem poses a major challenge. How can the courts be allowed toplay 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 toresolve. There is no doubt that applying that regulation is going to cause problems incountries with a Latin culture.2) The technical challengeThe judicial criminal investigation believes that it should take precedence, while the safetyinvestigation, which is international in scope, is characterized by a level of competence thatcannot be found anywhere else.However, since the dominant judicial investigation wants to be first in line, it wishes to relyon its own tests and analyses and, in accordance with the practice in Latin countries, brings incourt-appointed experts who, as a general rule, are necessarily less able than the experts in asafety investigation.From a technical standpoint, the challenge takes the form of competition, generated by thejudicial criminal investigation’s claim that it must take precedence over the safetyinvestigation.The fact that safety investigations are not designed to feed information to judicial criminalinvestigations leads to the creation of two bodies of investigators: the judicial investigativeteam, including but not limited to the gendarmerie, and for the safety investigation, theaviation 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 isto identify the causes of the accident, and analyze the relevant systems in order to improvethem.The technical challenge is virtually insoluble unless the courts agree to allow the criminalinvestigation to take second place, on the theory that it is more important to prevent accidentsfrom reoccurring than to punish individuals who made mistakes within a system which, bydefinition, has failed whenever a disaster occurs.3) The legal challengeIn a number of countries, including France, the conceptual challenge and the technicalchallenge are exacerbated by a legal challenge: the existence of third-party plaintiffs whorepresent the victims, and sue for damages (“civil parties”). 2    
  3. 3. Although this legal mechanism is completely unknown in common law countries, it is verywell 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 onlyprivate individuals, but also some share of the public interest.In France at least, civil parties bring considerable pressure to bear on judicial criminalinvestigations—first, when the investigation is ordered, and then, on how the investigation isconducted.Today, the victims’ chief concern is still to identify the sin that was committed, and find thesinner.The existence of civil parties fuels the conceptual challenge and the technical challenge, andmakes an appropriate solution even more difficult to find.Thus, after 17 long years, the Mont Sainte-Odile crash—a major aviation disaster in Francewith 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 ofthe crash, the Prosecutor decided to institute criminal proceedings, and the Investigationjudge was then unwilling to discontinue them, even though no specific error could beidentified—the disaster was caused by a navigational error, or by deliberately bringing theplane 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 challengeIn modern democracies, the bonds that knit societies together tend to weaken and becomestrained.They are only renewed by high-profile events that bring people together, such as majorsporting events.They are also renewed, however, by major disasters, which generate solidarity and feelings ofcompassion 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 describedabove. Since the victims are trying to identify the sin and finger the sinner, governmentsencourage them in their efforts. 3    
  4. 4. The criminal justice system is responsible for giving the victims satisfaction. That is whycriminal proceedings are systematically instituted even before the civil parties and the victimsmake their appearance.And the district attorneys feel encouraged to demonstrate their solidarity with the victims andtheir claims.The conceptual, technical and legal challenges are thus exacerbated by the political challenge.ConclusionIn France, these four challenges at the same time represent a cultural challenge. It is going tobe very difficult to find a satisfactory solution to the problems created by judicial criminalinvestigations.It may well take 30 years for the situation to change. But this can only happen if there is apolitical transformation, when the leading victims’ associations finally understand that thepublic interest which they claim to represent will be better satisfied by a “just culture” thanby a “Blame culture”.This means, first, that priority must be given to compensating victims as fully and as swiftlyas possible, and second, that individual actions motivated by a desire for revenge, must bewisely replaced with a system-wide approach.And perhaps some other venue than the criminal courts will have to be found to deal withaviation 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 theones to transform the political problem, and impel governments and the courts to allow thecriminal 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 bemuch more difficult to find an answer.The final idea is not to create a global immunity for people working in Aviation. It’s just toavoid the criminal investigation to jeopardize the safety inquiry and to avoid automaticcriminal cass that are not reasonnable but dangerous for safety. Daniel Soulez Larivière Mars 2011 4    
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