Michał Słojewski
- Dec 19, 2023
- 7 min read

Anyone who acts intentionally or negligently...

Does the lack of proper preparation for the flight result in legal liability? Can failure to apply appropriate minimums during a flight operation result in consequences for the pilot of the aircraft?

For the vast majority of airspace users, the answers to the above questions are affirmative. However, observing the events reported in the media and reading the reports of the State Commission on Aircraft Accidents Investigation (PKBWL), it can be assumed that, in the opinion of some, failure to comply with the rules in aviation does not carry any real consequences. The Just Culture policy, which is the basis for ensuring air safety, is often misinterpreted as "no-blame culture". Well... in one sentence: "Be happy that you are flying in Poland."

Germany

The first sentence of Article 58 of the German Air Traffic Act Luftverkehrsgesetz (LuftVG) states:

"Anyone who acts intentionally or negligently commits an administrative offense."

The above seems to be taken straight from the Just Culture definition, legally defining the scope of responsibility of the Bundesaufsichtsamt für Flugsicherung (BAF) officials - Federal Air Traffic Control Supervision Office. This authority is indicated in Article 63(4) as responsible for the enforcement of aviation law. Its scope of responsibility is presented in the table below.

The legal and enforcement department with the catchy name "Luftraum, Flugverfahren, Recht" LFR (Airspace, Aviation Procedures, Law) is responsible for investigations and administrative punishment on behalf of the BAF. The initiation of an investigation by this unit is based on reports from air navigation service providers (ANSP), individual reports from citizens and data obtained by BAF through other means (including the media). After the initial analysis and assessment that gross negligence or intentional action has occurred, a decision is made to launch an investigation or transfer the collected data to the appropriate authority (e.g. Air Force supervision or foreign CAA).

In the next step, LFR secures evidence in the case, i.e. radar data and (when necessary) recordings of ATS radio communications. Then it begins an investigation aimed at identifying the operator and the person or entity responsible (e.g. pilot, controller, airline department). At this stage, the LFR finally clarifies the allegations and admits statements or testimonies of the people responsible for the incident. If necessary, additional research is carried out to confirm or deny the thesis stated in the allegations. The final stage of the unit's operation is the assessment of the gravity of the offense and the degree of the space user guilt, as well as the decision on the application and type of sanctions. The Office may decide to discontinue the proceedings, apply a warning or a financial penalty. An important element in this decision-making process is archival data about the person responsible. Breaking the regulations in the conditions of recidivism affects the assessment by the BAF and, therefore, the applicable sanction.

It is assumed that the duration of the office's activities in a given case, from obtaining a complete set of evidence, should not exceed 6 months. Knowledge and data gained from each investigation is used in other areas of BAF's operations, including for analytical and statistical purposes to highlight deviations in specific safety areas.

statistical data — Figure 1 BAF prosecutions- 2019/2020

In 2019-2020, the BAF (Bundesaufsichtsamt für Flugsicherung) conducted 1,399 investigations related to administrative offenses in the area of air traffic regulations. The most common causes were and still are: violation of controlled airspace, failure to comply with the clearance or standard departure and arrival procedures, and communication disruptions (Fig. 1).

Great Britain

On 1 June 2019, Matthew Morris was the pilot of an Agusta A109 helicopter which flew through the RAF Ternhill aerodrome traffic zone. Winch-launched glider flights were taking place. The pilot of a glider which was launching saw the helicopter on a converging course path, released the cable and made a left turn. After the turn, the glider pilot saw the helicopter on the starboard side flying in the same direction and 500 feet away horizontally. The pilot waggled the glider’s wings to alert the helicopter to the glider’s presence, but the helicopter did not deviate from its path. Later the same day, Mr Morris flew through the Ternhill ATZ again.

Mr Morris pleaded guilty to two offences of flying within the ATZ without obtaining information from the air/ground service and guilty to two offences of not maintaining a watch on the appropriate radio frequency.

27/01/2020 Telford Magistrates’ Court Penalty: 4000GBP

The British Civil Aviation Authority (CAA UK) describes its enforcement policy most extensively in three documents: CAP 1326 (Regulatory Enforcement Policy), CAP 1074 (Safety and Airspace Regulation Enforcement Guidance) and CAP 1422 (Code of Practice for the Investigations and Enforcement Team). It is worth noting here that the guidelines, which are non-binding in Poland, in Great Britain constitute a simplified presentation of the applicable regulations.

CAA UK emphasizes the complementary role of Just Culture and law enforcement. The latter are always undertaken on the basis of reports in the reporting system, which indicate evidence of violation of regulations resulting from gross negligence or intentional action. According to CAP 1326, the supervisory authority is guided by three principles in its activities: applying a proportionate and risk-based approach, making independent/objective evidence-based decisions, and publishing the results of enforcement activities if such publication is justified in the public interest. Publications are limited to court judgments and does not include cases resolved through administrative proceedings or resulting from voluntary reports.

In the process of investigating pilot responsibility, officials of the IET (CAA Investigations and Enforcement Team) are obliged to thoroughly check and verify reports and submissions, trying to correlate them with other evidence. Their actions should be impartial, and the evidence collected should include all relevant information from witnesses of the event. In their actions, they should strive to complete the assessment within 6 months to ensure the efficiency of the proceedings. The person subject to the investigation has the right to testify on a voluntary basis and has the opportunity to benefit from legal support. Once the investigation is completed, the evidence is forwarded by the IET to CAA legal advisory team. It is here that the decision is made what actions the office will take towards the pilot, from refraining from further action to possible court proceedings.

On 12th of January 2011, at about 1535hrs, a Socata aircraft registration N850TV was about 7-8 nautical miles out from Birmingham airport on a NDB/DME approach to runway 15 with three passengers on board. The commander, Mr Visentini, was instructed by ATC to transfer to the Tower frequency – 118.30MHz. Mr Visentini read back the frequency correctly. However, he had pre-loaded an incorrect frequency - 118.03MHz - before his flight had commenced from Italy. The Tower Controller made a number of radio calls to N850TV, including an instruction to ‘go-around’ but received no response. A Flybe passenger aircraft was stationary on runway 15 before threshold. The commander of the Flybe aircraft heard the radio calls made by the Tower Controller to N850TV and he could see N850TV on his aircraft’s Traffic Collision Avoidance System (TCAS). N850TV was observed from the control tower and passed over the point where the Flybe aircraft was holding. When asked by ATC why he had landed without clearance, Mr Visentini said that he had thought he had a radio malfunction; he had not seen the Flybe aircraft and believed the runway was free. This was a very serious incident due to the proximity of N850TV to the aircraft lined up on the runway, and therefore prosecution was recommended. This incident was also investigated by the AAIB and UKAB. On 9th January 2012, at Solihull Magistrates’ Court, Mr Visentini was sentenced for one offence of flying within an aerodrome traffic zone without causing a continuous watch to be maintained on the appropriate radio frequency (Rule 45(6) Rules of the Air Regulations 2007), having pleaded guilty at an earlier hearing, and one offence of landing on a runway when there was another aircraft on the runway (Rule 14(2) Rules of the Air Regulations 2007), to which he pleaded guilty on the day.

27/01/2020 Solihull Magistrates’ Court Penalty: 6996,82GBP

The British regulator often undertakes to expand procedures in the most safety-problematic areas in order to improve pilots' preparation and knowledge of the regulations. A good example is the issue of airspace infringements, which mainly concerns GA aviation. In document CAP1404 "Airspace Infringements: review and actions process", CAA UK presents a scalable model of its response to air traffic irregularities, starting with a knowledge test on the regulator's website and ending with practical training. Infringements with a major impact on safety or recidivism may constitute grounds for license suspension and, in certain cases, may be assessed for administrative or judicial liability.

Balancing between Justice and Safety

The examples provided clearly outline the scope of responsibility of the supervisory authority, which goes far beyond that adopted in Poland. In both models, the "aviation authorities" openly declare the principles of using their powers to conduct investigations and draw consequences for violations of regulations, either in the form of an administrative decision or acting as a public prosecutor in a court. In Europe, there is a "thin red line" between promoting Just Culture and enforcing high standards of aviation safety. The key to safety is the openness of all aviation stakeholders to report errors and incidents. At the same time, there is a need for efficient functioning of criminal and legal liability mechanisms in cases of gross negligence or intentional actions. The cited examples of Great Britain and Germany show that Just Culture does not exclude itself from enforcing administrative and criminal liability. In a well-designed legal environment, both phenomena not only coexist, but complement each other. Otherwise, the path from "Just Culture" to the feeling of "impunity" shortens very quickly, which in turn is one of the greatest threats to safety.

The efficiency of both supervisory authorities mentioned above in conducting investigations is noteworthy. It can be taken for granted that their ability to process events at such a pace is the result, among others, of having competent and motivated human resources. A short period from the incident to the decision is a huge added value for strengthening air traffic safety. Any aviator responsible for violating air traffic regulations as a result of gross negligence or intentional action becomes convinced that punishment is inevitable. It is important that European countries continue to develop and adapt their regulatory systems to effectively manage the balance between the fair treatment of aviation personnel and aviation safety. Ultimately, the goal is not only to punish those responsible, but above all to improve procedures and regulations to avoid repetition of mistakes and guarantee safe travel for passengers.

Examples show that it is possible to create a national level system in which acceptable and unacceptable attitudes and actions - subject to penalization - are clearly defined, in compliance with applicable EU legislation and respect for Just Culture principles. In countries where this has not been done, for different reasons, a causative gap has arisen causing Just Culture to become distorted. As Małgorzata Chelis, an aviation psychologist, points out, without describing and applying sanctions for unacceptable behaviour, all conditions for Just Culture will not be met.