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Criminalization of the Aviation Professionals

Criminalization of the Aviation Professionals

It was a criminal law case that was held in Indonesian court concerning the crash of the Garuda Indonesia Flight 200. The defendant, who was the pilot in command (PIC), was allegedly involved in criminal conduct due to his negligence (Forbes, 2008). The court ruled that he has violated the Article 479G (b) of the Criminal Code concerning criminal negligence. Moreover, the negligent actions of the pilot caused 21 deaths (WikiNews, 2007). He was charged with six counts of manslaughter, which was heavily pegged on the major evidence presented by the prosecution that involved a report conducted by the National Transportation Safety Committee of Indonesia (National Transportation Safety Committee, 2007). The co-pilot testified that the Captain ignored his calls to perform the go-around, and this evidence was used in the trial against the accused person.

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The National Transportation Safety Committee of Indonesia performed the investigation of the accident and the Australian Transport Safety Bureau as well as the United States National Transportation Safety Board provided their assistance in this case. The investigators interviewed the crew, examined the wreckage, analyzed the flight data and cockpit voice recordings, and finally conducted a safety review of the airport. The investigations led to the release of the final report made by the NTSC on October 22, 2007 (WikiNews, 2007).

The trial ended with the verdict that the pilot was found to be guilty of negligence, and as a consequence, he was sentenced to two years of imprisonment, on April 6, 2009 (Susanto, 2009). However, the decision was overturned on  September 29, 2009 by the Indonesian High Court, who ruled for the pilot citing the failure of the prosecution to officially and convincingly prove the pilot guilty (Gartrell, 2009).

The captain of the Garuda Indonesia Flight 200 Mr. Marwoto Komar was prosecuted. Mr. Komar was accused to be at the center of the crash since he was the pilot in command, and during the accident the aircraft had an excessive speed when landing. According to the court, he had breached the Criminal Code relating to negligence as he was found not to have notified his co-pilot Gagam Salman R. or the air traffic control of the aircraft issues, even though he had two minutes for it.

There are a lot of other factors that would have contributed immensely to the accident: an inadequate training of the pilots, their emotional condition, and the pilot’s desire to gain from an incentive. In the first instance, insufficient training of the pilots played a significant role in the accident, because the NTSC report indicates that the co-pilot failed to perform his duties properly. That is he was supposed to take control over of the aircraft from the pilot in charge if he realized the aircraft was being navigated in a dangerous manner, but the co-pilot did not take any measures in this situation. According to the report, the co-pilot had not received an adequate training from the airline to replicate a scenario in which he would have been forced to take control of the aircraft when the pilot has mishandled the plane (National Transportation Safety Committee, 2007).

Secondly, though the report states that the pilot was aware that something was wrong during the approach, he probably became emotionally distracted. Moments before the crash, the pilot was recorded singing which indicates that he was in a relaxed mood, but in a matter of seconds, his attention has shifted as he relentlessly tried to reach the runway by making an excessively steep, fast and unstabilized approach, which caused a sense of heightened stressfulness for him. Finally, some days before the incident, the airline had introduced an incentive regarding fuel efficiency that aimed at awarding a bonus in case they make the consumption of fuel lower. The incentive had been implemented on the 1st of March, 2007, and while the captain, Mr.Komar might have denied the incentive playing a part in his decision to continue landing of the aircraft, the chances are that he had the desire to gain from it.

The legal system that the country abides in is the civil law system which differs from more commonly operating law systems mainly in the former British colonies. The Indonesian legal system has its roots from the French and German models, and its procedures vary considerably from those in Australia. The civil law systems do not use jury trial and decisions as to the guilt or innocence of the defendants are determined by a three-panel bench of judges. They are the chair commonly referred to as “Ketua”, who is senior to the other two judges. It is very rare that a judge offers a dissenting view from a decision of the other two, and any dissenting judgment is limited and never released. The judgments in Indonesia may only be a few pages long, but in larger cases, they might be very long, because the courts tend to summarize all evidences in the judgment. This scenario, however, is not usual in common law judgments (Lindsey, 2016).

As for judicial precedent, the principle that considers the previous rulings with similar facts on the identical point of law violation is not applied there. The courts in the civil law system are not bound by decisions of a similar or a higher court. In matters of court proceedings, the Indonesian system employs the inquisitorial mode of conducting inquiries, which is different compared to the adversarial nature of the common law system. During the civil proceedings in Indonesia, the judges face the witness who is placed alone at the center of the courtroom with the lawyers standing away from him/her to signify their reduced importance on the proceedings. The judges in the court are authorized  to bring those witnesses that have not been called yet, demand an attendance of additional witnesses, and even in some cases refuse to listen the testimonies from the witnesses that have been called by either party (Lindsey, 2016).

The rules of evidence are not emphasized as the judges tend to allow a presentation of any material evidences and then decide on its merits later. Further, the prosecution in Indonesia is always run by officials of the state that are referred to as “jaska” or prosecutors. The prosecutors are strictly government employees, and private lawyers can never be hired to represent the prosecutors. The police officers are the ones that normally conduct the initial investigations and after pass a brief to the prosecution. Finally, only during the pre-trial hearing or “praperadilan” one can make a decision on arrest or detention of an accused person as those issues can never be raised during the primary trial (Lindsey, 2016).

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The fact that the appellate court overturned the criminal conviction where the pilot was acquitted of criminal negligence was correct. Many may consider that statement as inconsiderate to the families and others who suffered immensely in the accident as the evidence suggested proved the pilot’s negligent actions. In many cases of criminal prosecutions that have been experienced in the past couple of years in aviation industry the situation has far surpassed what was seen in the past. According to one study, there have been only 27 criminal prosecutions arising from the airline industry worldwide from 1956 to 1999, that is during 43 years compared to a remarkable 28 trials within a nine year period from 2000 to 2009 (Michaelides-Mateou & Mateou, 2010). The statistics serve to indicate that there has been a wider target to those involved in the aviation’s industry majorly for the sole purpose of ascribing blame on defendants. There is a thin line between civil accident investigations and criminal investigations in their respective goals to try to avert future accidents and find someone to be guilty (Nemsick & Passeri, 2012). Begging for fairness on both sides, it is undeniable that certain activities, which include an intentional misconduct, should be prosecuted and served from both sides of the investigations. In the case of Captain Komar, charges of any deliberate negligence were dropped by the prosecution that further distanced him for any liability. In that regard, the features of ordinary negligence should not be criminalized in this case. Its criminalization would overlook its unintended nature and would further contribute to detrimental effects (Habchi, 2015). Further, it is a global consensus that criminal investigations have an adverse effect on technical investigations as well as the end goal of improving air safety, which is according to the International Civil Aviation Organization (ICAO) protocol for conducting an accident investigation (Nemsick & Passeri, 2012).

The impact of the investigation and trial process had to have significant effects on Mr.Komar since he was a family man, and his family members were present during the final verdict of the trial. Trials are usually gruesome in nature as they cause the individuals involved a tremendous stress, whereby in this case Mr. Komar had to shoulder the blame for the death of 21 people because of his unintentional negligence. Although the ruling was later overturned by an appellate court, certainly it was a difficult emotive issue for him and his family. The airline itself was not spared as it was hit with a two-year ban by the European Union that did not allow any flights to the European Union. The ban also affected the country, because it also covered all Indonesian’s airlines. The result of the embargo not only meant a decrease of airline profits, but also it influenced the whole economy of the country as it lost a huge market, the European Union.

Inevitably there was a more significant impact on the piloting profession.  That is the pilots started to fear of landing their planes because of the chances for being prosecuted on unintentional accidents were high. Further, the violation of the international protocol on not using the investigation report was a clear signal for the pilots that little would be done to protect their rights enshrined by the international law.

Criminal proceedings that arise from aircraft accidents inevitably led to prejudices in civil investigations as well as lawsuits that were initiated by affected families (Nemsick & Passeri, 2012). With the aviation professionals facing the risk of criminal prosecutions, many of them would be less likely to cooperate or testify (Habchi, 2015). The involvement in criminal proceedings may incite some fear among the professionals, and in the case of the United States, they may plead the Fifth Amendment and refuse to testify. Thus, it may hinder an effective cooperation in any investigations regarding the accidents, which would prove to contradict the ICAO protocol of aviation investigations. Insurers, however, may also take advantage and use the potential criminal charges as the reasons to deny the coverage or issuance of reservation of rights when it comes to the individual’s representation and defense (Nemsick & Passeri, 2012).

A just culture is a culture in which the individuals of the aviation industry are not punished for negligent acts but limits criminal prosecutions to the instances only related to sabotage, gross recklessness, and intentional misconduct. The just culture advocates that the essential consideration that is to be made during official investigations should determine the probable cause and contributing factors which led to an accident, and should not punish any aviation professional (Sumwalt, 2008).

The just culture may cause the situation when many pilots upon being treated under the auspices of this culture might evade the prosecution for actual crimes committed. However, it protects them from premature blame because inexperienced technical experts may give flawed technical analyses.The aviation industry is vital to the present day because it enhances globalization in the positive sense. It is also a complex industry that has a lot of technicalities involved, thus it requires a significant expertise on the part of the professionals. The just culture merely emphasizes on the adoption of stricter guidelines before the law enforcement brings criminal investigations in instances where accidents occur. The overall aim of the culture is to find the effective ways and methods in the aviation industry that will ensure a productive cooperation between the professionals and authorities.

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