Rosa Arnaldo y Mª Jesús Guerrero, Chairperson and Member of the Board of CIAIAC

COMISIÓN DE INVESTIGACIÓN DE ACCIDENTES E INCIDENTES DE AVIACIÓN CIVIL

MINISTERIO

DE FOMENTO

Secretaria de Estado de Transportes

Protection of information on the chain of air Protection of information on the chain of air accidents and incidents investigationaccidents and incidents investigation: : Some Some difficulties of the current legal frameworkdifficulties of the current legal framework

Spanish Civil Aviation Accident and Incident Investigation Commission

(CIAIAC)

María Jesús Guerrero Lebrón

CIAIAC Board Member

Rosa Arnaldo Valdés

CIAIAC President


MINISTERIO

DE FOMENTO


SUMMARYSUMMARY

Introduction. Legal framework. Annex 13 to the Convention on International

Civil Aviation (CICA). Inclusion in our legal system.

Regulation (UE) nº 996/2010. Supremacy over national law.

Air Safety law. Hermeneutic problems.

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MINISTERIO

DE FOMENTO


Aircraft Accidents and Safety Investigations……

• The 2010 accident rate for Western-built jet aircraft has been the lowest in aviation history.

• Compared to 10 years ago, the accident rate has been cut 42% from the rate recorded in 2001.

Independent investigation into accidents is essential as it the surest way of:• identifying the causes, contributing and underlying factors of an accident• producing recommendations for preventing similar situations in the future

"What really happened?"“What can be done to prevent similar incidents in the future?”


MINISTERIO

DE FOMENTO


The purpose of Safety Investigations……

The sole objective of accident investigation should be prevention.

It purpose should not be to attribute blame or liability and the process should be independent from any other proceedings (criminal, administrative, civil) .

Criminal, administrative

or civil proceedings

AviationSafety

Investigations

•The various investigations are conducted quite differently.

•Procedures for gathering/processing information are different and incompatible.

•Written reports resulting from each investigation are handled differently as well.

Safety report containing findings of the investigation has to be public.

Inappropriate use may lead to •erroneous conclusions•erroneous interpretations •compromise availability of safety information in future investigations


MINISTERIO

DE FOMENTO


Sensible information in the course of a safety investigation may be of various nature.

5Every one of them requires specific protection, disclosure or use.

Information in the course of Safety Investigations…

Purely factual

data

Sensitive nature

information

Information produced during the

investigation

Opinions, analysis, conclusions, testimony

or statements from investigators about causes and contributing factors.

Freely shared between authorities involved in the investigation

• Availability of such information is crucial in the disclosure of all circumstances of the event and of its causes: witness testimonies or other statements, accounts and notes taken or received,…

• Unauthorized disclosure or inappropriate use may compromise its future availability

• Protection from inappropriate use is of utmost importance.

• Sensitive issue, linked not only with safety considerations but also with the fundamental right of every citizen to a fair trail and prohibition of self-incrimination.


MINISTERIO

DE FOMENTO


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The protection of Safety Information…

The challenge is :to protect information gathered or produced during the safety investigation

while allowing for disciplinary, civil, administrative and criminal proceedings

The sole purpose of protecting safety information from inappropriate use is to ensure its continued availability

Inappropriate use refers to the use of safety information for purposes different from the purposes for which it was collected, namely, use of the information for disciplinary, civil, administrative and criminal proceedings against operational personnel, and/or disclosure

of the information to the public.

•Providing protection to qualified safety information is a State’s safety responsibility.

•The protection should be specific for each safety information .


MINISTERIO

DE FOMENTO


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Current Safety Information protection levels

• statements from persons• communications between persons involved• medical information• cockpit voice recordings and transcripts• recordings and transcriptions from ATC units• cockpit airborne image recordings and any part or their transcripts • opinions expressed in the analysis of information

Protection provided by Annex 13.

Further protection provided EU

Regulation 996/2010

• persons given evidences• personal information• material produced during investigation: notes, drafts, opinions written by the investigators, …• information and evidence provided by investigators from other Member States or third countries • drafts of preliminary or final reports or interim statements• ATC units internal reports • safety recommendations transmission covering letters

Information that shall not be made available or used for purposes other than safety investigation

Additional protection

required

+ +Final Report of the investigation including:•opinions, •analysis, •conclusions, •testimony •statements from investigators about causes and contributing factors.


MINISTERIO

DE FOMENTO


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Consequences of no protection of Safety Information

Just a few examples:

Schiphol, December 1998: •Aborted take-off roll incident because of a towed aircraft 747 crossing the runway, due to a misinterpretation by the Assistant Controller ended with the Coach/Supervisor, the Trainee and the Assistant Controller charged and found guilty of provision of Air Traffic Control in a dangerous manner.

•Over the years that the legal proceedings went on, the number of incident reports submitted by controllers dropped by 50%.55.

Malaga, September 2006: •In 2008 the Spanish NSA opened a file to a controller, with the possibility of fine and license withdrawals, using as basis the report of the safety investigation of an incident at Malaga airport platform in 2006.

ATS incidents in Spain, 2010:•An extremely low number of ATS incidents are notified by pilot or controllers to the Spanish Aircraft Accident Investigation Board and NO PRESERVATION of VDR or FDR is guaranteed.

•Spanish Aircraft Accident Investigation Board is aware of incidents by CEANITA investigation reports (NSA Internal investigation commission according to Annex 11 ) approximately one year or more after.


MINISTERIO

DE FOMENTO


Legal frameworkLegal framework

What regulation prevails in case of conflict?9

• Annex 13 Art. 5.12 + Attachment E: “Legal guidance for the protection of Information from safety data collection and processing systems.

• Art. 14 Regulation (EU) Nº 996/2010, in force since 3rd September 2010.

• Spanish Law 21/2003, on Air Safety, arts. 18 and 19 of, in force since 6th March 2011.


MINISTERIO

DE FOMENTO


Annex 13 to the Convention (I)Annex 13 to the Convention (I)

Is it considered in force in our legal system?Art. 96.1 Spanish Constitution: «Validly concluded international treaties once officially published in Spain shall constitute part of the internal legal order».

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Chicago Convention: •Signed in 1944 •Ratified by Spain in the original language: 5th March 1947 •Spanish text signed in Buenos Aires: 24th September 1968 •Entered into force among States that have ratified without reservation: 24th October 1968•Published in the BOE nº 311, 29th December 1969 (first official publication in Spain)


MINISTERIO

DE FOMENTO


Annex 13 to the Convention (II)Annex 13 to the Convention (II)

Art. 37 Convention: • Each contracting State undertakes to collaborate

in securing the highest practicable degree of uniformity in regulations.

• The OACI undertakes to adopt and amend international standards and recommended practices and procedures in several fields.

Art. 54.l) Convention: The Council assume the competence to adopt international standards and recommended practices and procedures.

Art. 38 Convention: The States have to report to the Council any differences from the Standards within 60 days after adoption.

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MINISTERIO

DE FOMENTO


Annex 13 to the Convention (III)Annex 13 to the Convention (III)

• According to the preamble to the Annex, the Standards are binding, while the Recommend Practices are optional.

• Annex 13 to the Convention, translated in its tenth edition July 2010: • Amended 12 times, • The last amended is applicable since 18th

November 2010,• None of them has been published in BOE.

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MINISTERIO

DE FOMENTO


Does Annex 13 bind?Does Annex 13 bind?

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Doctrine in favour of the implementation:

Do not cause burden to the citizens or bring them advantages

High Court Resolution 659/93

Overturn Department Order 30-11-1990 which include the text of Annex 1 to the CICA.

Reason: Not have been required the prior mandatory opinion of the State Council

LEGAL UNCERTAINTY


MINISTERIO

DE FOMENTO


Solution?Solution?

In Italy: •Art. 690 CN contain:

•Reference to the Law which ratified the Chicago Convention•Empowerment for which incorporate the annexes and rules of development to the CICA:

• Decree of President• Decree of l’Ente Nazionales

per l’Aviazione Civile

Could it be applicable in Spain?

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MINISTERIO

DE FOMENTO


Regulation (EU) Nº 996/2010Regulation (EU) Nº 996/2010

• Art. 14.1: Records shall not be made available or used for purposes other than safety investigation.

• Exception: • By decision of The Administration of justice,

• or • the authority competent to decide on the disclosure of

records according to national law.• JUSTIFICATION: any other purposes permitted by law

outweigh the adverse domestic and international impact.

• LIMIT: More restrictive national regulation.15


MINISTERIO

DE FOMENTO


Regulation (EU) nº 996/2010 Assessment Regulation (EU) nº 996/2010 Assessment

• Previous legislative process: the drafters had interest to specify the assumptions on which accepts the disclosure of certain data considered sensitive and protected.

• In the adopted text have been left open a great deal of issues Coordination protocols: • Technical research bodies.• Other bodies involved in the investigation (Judicial

authorities...).

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MINISTERIO

DE FOMENTO


Spanish Air Safety LawSpanish Air Safety Law

• Hermeneutic problems: • Art. 18.1:

• First paragraph: Protected information of the SSP• Second paragraph: Information relating to accident

investigation→ R. 996/2010

• Art. 19.1: • First paragraph: Regulate the exceptions that apply to

art. 18.1• Second paragraph: The exceptions relating to the

second paragraph of Article 18.1 are referred to Regulation (EU) Nº 996/2010

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MINISTERIO

DE FOMENTO


Spanish Air Safety Law AssessmentSpanish Air Safety Law Assessment

• Unresolved issues by the Regulation does not have been regulated, because they have been awaiting the coordination protocols with other authorities.

• Issues to address: a) Access to the scene of the accident;

b) Access and protection of evidences;

c) Initial and ongoing interrogations about the status of each process;

d) Exchange of information;

e) Appropriate use of safety information;

f) Resolution of conflicts...

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MINISTERIO

DE FOMENTO


Conclusions: Legislation hierarchyConclusions: Legislation hierarchy

• Annex 13, Is it in force?

• Regulation (EU) Nº 996/2010.• Except more restrictive national legislation.

• National legislation.• Coordination protocols.


MINISTERIO

DE FOMENTO


Thank you for your attentionThank you for your attention

Business

Rosa Arnaldo y Mª Jesús Guerrero, Chairperson and Member of the Board of CIAIAC