Criminalization of aviation incidents and accidents—and its unintended consequences—holds the potential to negatively affect aviation safety and jeopardize a positive reporting culture. Outside of the U.S., there has been a steady increase in legal actions against flight crewmembers and other aviation workers.

Often, dual investigations are initiated following an incident or accident. The technical investigation focuses on improving flight safety. Whereas a judicial investigation aims to determine fault and blameworthiness for actions that may lead to criminal or civil liability and subsequent prosecution.

Between 1956 and 2009, there were 57 prosecutions of aviation professionals worldwide. These cases involved many different aviation professionals, including pilots, air traffic controllers, maintenance technicians, airline and air traffic managers, manufacturers, and third-party vendors. Penalties in these cases resulted in prison sentences, monetary damages, and/or probation, according to a book entitled “Flying in the Face of Criminalization.”

The Flight Safety Foundation (FSF) has taken note of this uptick in criminal investigations and recognizes the negative impact on safety: “This can have a chilling effect on the flow of crucial safety information and a long-term adverse impact on safety. Holding controllers, pilots, and aviation maintenance technicians criminally liable for honest mistakes ultimately threatens the safety of the traveling public.”

According to FSF, “The safety of the traveling public and the continued improvement of the aviation industry’s safety performance depend on encouraging a climate of openness and cooperation following accidents and serious incidents. It is this climate of openness and cooperation that allows investigators to determine the probable and contributory caused of accidents and incidents from which risk mitigation strategies and lessons learned are developed.” The fear of criminal prosecution discourages the sharing of accident-related information.

ICAO provides international standards for accident investigations. The organization clearly states in Annex 13 (“Aircraft Accident and Incident Investigation”) that the sole objective of an aircraft accident or incident investigation is the prevention of future accidents and incidents. It is not the purpose of an investigation to apportion blame or liability.

This language, as provided in ICAO Annex 13, is clear, yet these parallel criminal investigations continue and often involve business aviation.

Fatal Falcon Upset

In September 1999, a Dassault Falcon 900B operated by Olympic Airways for the Greek government experienced an inflight upset that killed seven passengers and seriously injured three other passengers.

During the initial climb, the “PITCH FEEL” warning light illuminated and remained on throughout the cruise and descent phases of flight. Descending through 15,000 feet, the autopilot unexpectedly disengaged and for approximately 24 seconds the aircraft began a series of 10 pitch oscillations with the vertical G-loading ranging from +4.7 g to -3.26 g. As reported, the cabin of the aircraft was destroyed. None of the passengers that were killed had their seatbelts fastened.

Greek prosecuting authorities charged the captain and first officer with manslaughter and causing bodily injury. The trial court found the captain guilty and sentenced him to five years imprisonment. The first officer was acquitted. On appeal, the captain’s sentence was reduced to 36 months.

Amazon Jungle Midair Collision

On Sept. 26, 2006, a U.S.-registered Embraer Legacy 600 collided midair with a Gol Airlines Boeing 737-800 over the Amazon rainforest in Brazil. The 737 crashed, killing all 154 passengers and crew, while the damaged Embraer landed safely at a remote Brazilian air force base.

The two American pilots were detained for 71 days in Brazil. During this time, federal prosecutors began to build their case against the pilots and air traffic controllers. Initially, the pilots and two controllers were charged with involuntary manslaughter. If found guilty, each pilot would serve up to 12 years in prison.

In June 2007, the International Federation of Airline Pilots Association (IFALPA) issued a press release stating that the judge’s decision to indict the pilots and air traffic controllers was “a crime against air safety” and was contrary to the principles of a “just culture.” It also took exception to the police investigation pre-empting the findings of the technical investigation.

The criminal proceedings against the two pilots lasted 18 years and included several new criminal charges, sentencing, and several appeals. In June 2024, a judge in Brazil dismissed the entire case against the pilots due to the statute of limitations expiring.

Lack of Restraint

Criminal investigations are problematic for aviation workers. Laws are inconsistent, and there is a lack of restraint by prosecutors throughout the world. For example, in 2007, a Bombardier Challenger 850 crashed in Russia, seriously injuring two crewmembers and leaving another with minor injuries. Following this accident, the prosecutor’s office, as a “routine practice,” immediately began a criminal investigation to apportion blame.

In January 2024, with the aircraft still smoldering on the runway, federal prosecutors began a second investigation into the collision between a Japan Airlines Airbus A350-900 and a Japan Coast Guard Dash 8-Q300 at Tokyo Haneda Airport, focusing on possible professional negligence of the pilots and air traffic controllers involved in the accident.

The fear of criminal prosecution is real. FSF recognizes that it is unrealistic to expect that aircraft accidents will not result in civil or criminal proceedings. Evidence of willful acts of misconduct, intentional failures to follow procedures, or egregious reckless behavior should result in regulatory enforcement action—or in extreme cases, criminal prosecution. But in the case of human error or a tragic mistake, criminal punishment is well outside the boundaries of modern safety philosophy and theory.

The opinions expressed in this column are those of the author and not necessarily endorsed by AIN Media Group.