Õiglase suhtumise põhimõtetest

Tere, Seoses Lennuameti pöördumisega Riigiprokuratuuri poole tutvustamaks õiglase suhtumise põhimõtteid sooviksin edastada täpsemat informatsiooni töötoa kohta. Eurocontrolil (Euroopa Lennuliikluse Ohutuse Organisatsioon) on rohkelt kogemusi õiglase suhtumise põhimõtteid tutvustavate töötuba korraldamisega prokuröridele. Lennuamet on Eurocontroliga arutanud võimalust taolist töötuba korraldada ka Eestis. Eurocontroli poolne sisend: Eurocontrol tutvustab 1.5-päevase töötoa käigus õiglase suhtumise põhimõtteid liikmesriikides, töötuba toimub inglise keeles. Eurocontrolist on kaasatud nii lennunduseksperdid kui ka juriidilised eksperdid, kellel on varasem kogemus teistes riikides esile kerkinud probleemidega. Eurocontroli kontaktisik on Antonio Licu (Head of Safety Unit, [email protected], Tel: +32 (0)2 729 34 80). Eurocontrol katab töötoa läbiviijate reisi- ja majutuskulud ning päevarahad. Töötoa korraldamisel peab liikmesriik leidma sobilikud ruumid, tagama kohvipauside ajal kohvi ja väikese snäki, ühise lõunasöögi ning õhtusöögi. Lisan manusesse kaks faili, mis on Eurocontroli kontaktisiku poolt edastatud, et laiemalt mõista, miks õiglase suhtumise põhimõtted lennunduses olulist rolli mängivad. Küsimuste korral vastan meeleldi. Lugupidamisega, Tiina Ester lennundusohutusnõunik +372 610 3592 www.ecaa.ee | Lõõtsa 5, Tallinn 11415 Lennuamet EUROCONTROL Just Culture Policy EXECUTIVE SUMMARY The implementation of the concept of “Just Culture” is now widely seen as key for further improvement of aviation safety through more and better reporting of aviation occurrences. An essential condition for establishing a “Just Culture” at national level is an enhanced cooperation and coordination between safety and judicial authorities. The EUROCONTROL Just Culture Task Force, which is composed of legal and safety experts of the Member States, European Commission, ATM and Air Transport associations and EUROCONTROL, has developed a “Model Policy regarding criminal investigation and prosecution of civil aviation incidents and accidents”. This paper presents the said Model Policy, together with additional information in support of the application of such a policy within the Member States. The information should be useful for any organisation willing to undertake the substantial, but otherwise rewarding, task of implementing such a policy within the state. The paper also presents background informa- tion relative to the development of this policy. The Provisional Council of the EUROCONTROL Organisation has unanimously endorsed this Policy at its session of 10th May 2012. This is a crucially important step in the quest for better aviation safety, commensurate with the expected traffic growth of the following decades. 3 EUROCONTROL MODEL POLICY REGARDING CRIMINAL INVESTIGATION AND PROSECUTION OF CIVIL AVIATION INCIDENTS AND ACCIDENTS Objective The objective of this Policy is to provide directions regarding the criminal investigation and prosecution of potential criminal offences resulting from aviation accidents or that come to the attention of prosecutors through the reporting of civil aviation incidents. Those directions are warranted by the recognition that safety is paramount to aviation, and that preserving safety is in the public interest. Ensuring a judicial process in the aftermath of aviation incidents or accidents which achieves a balance between justice and safety requi- rements is essential. This is recognised in a number of international legal texts: ICAO Annex 13 regarding accident and incident investigation (in particular Attachment E providing legal guidance); ESARR 2; EU Regulation No 996/2010 and EC Directive 2003/42, relevant provi- sions of national Aviation laws. Scope of application This Policy applies to the criminal investigation and prosecution of criminal offences resul- ting from civil aviation accidents or from incidents reported under mandatory and voluntary occurrence reporting schemes. Contact with investigation bodies/safety managers In case of accidents or serious incidents, the representatives of the judicial authorities (police, prosecutors) will contact the investigation board in charge of the ICAO Annex 13 investiga- tion with a view of coordinating positions and priorities. Upon becoming aware of an incident, through, inter alia, an incident report, prosecutors will contact the relevant national safety authority, such as the investigation board or the Civil Aviation Authority. They will also contact, as appropriate, the safety managers of the Air Navi- gation Service Providers, the airlines or the airport authorities in order to exchange necessary information, discuss use of evidence and possible coordination. This should be done with due respect for and recognition of the responsibilities and inde- pendence of each entity, and relevant applicable laws. The objective is to ensure effective investigation and decision making processes in order to maintain and improve public safety as well as the administration of justice. 4 Evidence n Report An incident report filed under a mandatory and voluntary occurrence reporting scheme cannot be used as evidence in criminal proceedings against the reporter. Accidents and incident reports done by investigating bodies or entities under ICAO Annex 13 and EU Regulation No 996/2010 cannot be used in criminal proceedings against individuals. n Witness Declaration A witness declaration received in the context of a safety investigation cannot be used as evidence in criminal proceedings against the person having made that declaration. n Prosecution No prosecution will be brought against individuals for actions, omissions or decisions which reflect the conduct of a reasonable person under the same circumstances, even when those actions, omissions or decisions may have lead to an unpremeditated or inad- vertent infringement of the law. Nothing in this Policy should prevent criminal prosecutions in the event of intentional wrongdoing or gross negligence.1 n Expert support Prosecutors should avail themselves of the necessary expert support from the aviation domain. 1 Gross negligence is referred to in a number of EC instruments but there does not seem to be a commonly agreed definition of gross negligence in Europe. It seems to be however generally agreed that gross negligence implies a degree of severity, serious disregard to an obvious risk and profound failure to take such care that is evidently required in the circumstances. Although a number of States assimilate gross negligence and intentional harm/wrongdoing, it is not always the case. Hence the proposal to add intentional wrongdoing in the list of cases that should be subject of prosecution – it will ultimately be up to each State implementing the Model Policy to refer or not to intentional wrongdoing in view of its national legal framework. 5 BACKROUND The need to strengthen on-going efforts to further improve the safety of the European skies is a priority for EUROCONTROL, in particular with respect to incident reporting and data sharing, an area where progress is still slow. One of the main elements towards progress has been identified as the possible role and involvement of national justice authorities and the recognition and perhaps reconciliation of the responsibilities and interests of both the judiciary and safety authorities. This has resulted a few years ago in the introduction by EUROCONTROL of the concept of “Just Culture” in the aviation domain. In addressing the legal issues relating to safety repor- ting, it was found that a number of laws and regulations were in place that would support the establishment of a Just Culture. It also became apparent that the issue was not neces- sarily the need for more legislative actions but rather the way in which those responsible for implementation and enforcement of applicable legislation would be able to take into consideration Just Culture principles in the exercise of their responsibilities. In 2009, the Just Culture Task Force (JCTF, see the Annex for its Terms of Reference) was established in EUROCONTROL, with the objective to promote debate and discussion on the legal issues that relate to safety and justice, to foster and support dialogue between safety and judicial experts and to develop relevant guidance material and policies in order to support the implementation and dissemination of Just Culture. Under the chairmanship of the EUROCONTROL Legal Service, the Task Force is composed of representatives from the Civil Aviation Authorities, Air Navigation Service Providers and Accident Investigators of the member States, the European Commission and the European Aviation Safety Agency, a number of international air transport and air traffic control organisations (IATA, ERA, ECA and IFATCA) Accident Investigation Boards and of National Prosecutors. The meetings are also attended by observers from the US National transport Safety Board and from ICAO. 6 Introduction The EUROCONTROL Provisional Council discussed at its meeting on 10 May 2012 a proposal for a “Model Policy regarding criminal investigation and prosecution of civil aviation incidents and accidents”, which has been developed by the EUROCONTROL Just Culture Task Force (JCTF). The proposal for a Model Aviation Prosecution Policy (MAPP) follows an ongoing successful practice in a number of EUROCONTROL member States such as the Netherlands, the UK and France. The work in the Just Culture Task Force greatly profited from their active support and from States, the EU, International organisations and of many other participants. The MAPP also establishes a direct link with some of the key objectives of the new EU Regulation No. 996/2010 on the investigation and prevention of accidents and incidents in civil aviation. The unanimous endorsement of the MAPP by the representatives of all the 39 EUROCONTROL member States and of the EU, the full text of which is presented in this document, confirms that the availability of a model for a national aviation prosecution policy is seen as a very effective means to propagate Just Culture at the national level without in any way interfe- ring with the responsibilities of the national judicial authorities. It provides an answer to the growing need to strengthen on-going efforts to further improve the safety of the European skies which remains a priority for EUROCONTROL, in particular with respect to incident reporting and data sharing: two processes that are vital for maintain safety levels in Europe. The model provides the National authorities with guidance material and a template that may be used at national level. The MAPP is not a mandatory or prescriptive document; it is a tool based on widely accepted Just Culture principles. States can adapt and integrate it national level in order to put in place effective and realistic arrangements that address the relation between aviation safety and criminal investigation. The MAPP concept fully respects the sovereign administration of justice function as it remains the prerogative of national governments and prosecutors to adopt and implement an Aviation Prosecution Policy. The proliferation of an Aviation Prosecution Policy will be an important element of the establishment of a Just Culture for aviation and key to the balanced involvement and support of judicial authorities. The general endorsement by the Provisional Council of this Model for a national Aviation Prosecution Policy signifies an important and constructive step forward both at European and at the global level that will send a strong signal to both the European and global initia- tives for enhancing aviation safety while respecting the administration of justice. 7 THE DEVELOPMENT, STATUS AND OBJECTIVES OF THE MODEL AVIATION PROSECUTION POLICY Development The concept of the MAPP is based on comparable current practice in the Netherlands and the UK. The Dutch Ministry of Justice issued in December 2006 “Instructions with regard to criminal investigation and prosecution in the event of reporting of occurrences in civil avia- tion”. These instructions recognise that in order to ensure a willingness to report incidents, it would be desirable to make provision for the protection, subject to certain conditions, against criminal sanctions for those reporting occurrences in civil aviation. In the UK, the Code for Crown Prosecutors issued by the Crown Prosecution Service provides guidance on the general principles to be applied when making decisions about prosecu- tions which include the need to balance prosecution actions against general public interests such as aviation safety. In a similar vein, the UK CAA has issued guidelines regarding the “Conduct of Prosecutions by the CAA as a Prosecutor”. The MAPP also reflects the objectives of the recent EU Regulation No. 996/2010 of the Euro- pean Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation. This Regulation, when addressing coordination of investigations, requires States to ensure that there are, inter alia, advance arrangements between safety investigation authorities and judicial authorities. Status It should be emphasised that the modalities of administration of justice in the different States is a sovereign prerogative of each individual State. National criminal law and procedures differ between States in Europe and clearly no policy could represent a “one-size-fits-all” approach. This is why the MAPP is presented as guidance material which provides a model i.e. a template that may be used and adapted at national level. The Model Policy is clearly not intended to be mandatory – it is a tool which States can adopt or integrate at national level, taking into account the specificities of their legal system, to foster the introduction of Just Culture and to ensure appropriate arrangements between their safety and judicial authorities. 8 MAIN FEATURES OF THE MODEL AVIATION PROSECUTION POLICY As set out in article 1.1 of the Model Policy, its main objective is “to provide directions regarding the criminal investigation and prosecu- tion of potential criminal offences resulting from aviation accidents or that come to the attention of prose- cutors through the reporting of civil aviation incidents.” It is worded in such a way that it can be supple- mented or adapted to reflect national specificities. The policy in itself is a concise document. It addresses the criminal investigation and prose- cution processes related to civil aviation accidents and inci- dents which have been reported under mandatory or voluntary reporting schemes. It provides guidance material with respect to the coordination between safety investigation bodies and judi- cial authorities (in line with EU regulation No 996/2010), and to the protection of incident reports filed under mandatory and voluntary occurrence reporting schemes, accident and incident reports under ICAO Annex 13 and witness declarations received in the context of safety investigations in the sense that those cannot be used by a prosecutor as evidence in criminal proceedings. One of the most important elements of the MAPP guidance is the recognition that nothing should prevent criminal prosecutions in the event of intentional wrongdoing or gross negligence. However, it also recognised that no prosecution should be brought against indi- viduals for actions, omissions or decisions that reflect the conduct of a reasonable person even when those actions, omissions or decisions may have caused an unpremeditated or inadvertent infringement of the applicable law. 9 WAY FORWARD Just Culture has been on the agenda for many years and it has become apparent that a key part of its successful implementation relies on an active and open coordination between the safety and judicial authorities. There seems to be overall agreement on this principle, at least from those involved in the safety side and from those involved in the administration of justice which have dealt with aviation related accidents and incidents. The recent legislative developments at EU level, such as the EU Regulation No 996/2010 referred to above as well as the Commission Regula- tion laying down a performance scheme No. 691/2010, which introduces the notion of Just Culture Key Performance Indicators, will create obligations on States to ensure that they have in place a sound and effective framework supporting the concept of Just Culture. The ICAO Safety of Information Protection Task Force (which was established after, among other things, joint European initiatives at the last ICAO Assembly and in which EUROCON- TROL is represented), has also recognised the importance of guidance for States for creating prosecution policies in the aviation domain and is expected to include recommendations to that effect in its final report which is due in November 2012. The MAPP concept fully respects the sovereign administration of justice function as it remains the prerogative of national governments and prosecutors to adopt and implement an Aviation Prosecution Policy. The proliferation of an Aviation Prosecution Policy will be an important element of the establishment of a Just Culture for aviation and key to the balanced involvement and support of judicial authorities. The Just Culture Task Force will continue to actively promote an extended dialogue with States, International Organisations and other parties, aimed at the implementation of the MAPP at national level in order to contribute to an efficient and stable balance between the interests of safety and justice in the aviation domain in Europe and beyond. 10 JUST CULTURE TASK FORCE Objectives and tasks The Just Culture Task Force will: n Promote debate and discussion on the legal issues that relate to safety and justice, in particular Just Culture; n Foster and support dialogue between safety and judicial experts; n Develop guidance material and policies in order to support the implementation and dissemination of Just Culture; n Develop proposals for consideration by relevant bodies (Permanent Commission, European Commission / Ministries of Justice); n Any other tasks considered necessary to meet the above objectives. Reporting The Task Force will report to the EUROCONTROL Director General. Practical arrangements The members of the Just Culture Task Force will be the representatives of, inter alia, States (Justice and Transport Ministries, Prosecutors office), ANSPs, professional associations, avia- tion trade professional associations, EASA, the European Commission and EUROCONTROL Agency, who have an interest in furthering the objectives of the Task Force. The Agency will chair the meeting of the Task Force and provide secretarial support. Meetings will be convened as necessary. Terms of reference approved on 23 June 2009. 11 AIDE MEMOIRE The EUROCONTROL Provisional Council discussed at its meeting on 10 May 2012 a proposal for a “Model Policy regarding criminal investigation and prosecution of civil aviation incidents and accidents”, which has been developed by the EUROCONTROL Just Culture Task Force (JCTF). The introduction of the Model Policy follows an ongoing successful practice in a number of EUROCONTROL members States such as the Netherlands, the UK and France. The work in the Just Culture Task Force greatly profited from their active support and of many other participants from States and International Organisations. The Model Policy also esta- blishes a direct link with some of the key objectives of the new EU Regulation No. 996/2010 on the investigation and prevention of accidents and incidents in civil aviation. The unanimous endorsement by the representatives of all the 39 EUROCONTROL member States and of the EU confirms that the availability of a model for a national aviation prose- cution policy is seen a very effective means to propagate Just Culture at the national level without in any way interfering with the responsibilities of the national judicial authorities. It provides an answer to the growing need to strengthen on-going efforts to further improve the safety of the European skies which remains a priority for EUROCONTROL, in particular with respect to incident reporting and data sharing: two processes that are vital for maintain safety levels in Europe. The Model Policy provides the National authorities with guidance material and a template that may be used at national level. The Model Policy is not a mandatory or prescriptive docu- ment; it is a tool based on widely accepted Just Culture principles. States can adapt and integrate it national level in order to put in place effective and realistic arrangements that address the relation between aviation safety and criminal investigation. 12 One of the most important provisions of the Model Policy is the recognition and confirmation that nothing should prevent criminal prosecutions in the event of intentional wrongdoing or gross negligence. However, it also recognises that no prosecution should be brought against individuals for actions, omissions or decisions that reflect the conduct of a reasonable person even when those actions, omissions or decisions may have caused an unpremeditated or inadvertent infringement of the applicable law. In doing so, the model policy concept fully respects the sovereign administration of justice function as it remains the prerogative of national governments and prosecutors to adopt and implement an Aviation Prosecution Policy. The proliferation of an Aviation Prosecution Policy will be an important element of the establishment of a Just Culture for aviation and key to the balanced involvement and support of judicial authorities. The general endorsement by the Provisional Council of this Model for a national Aviation Prosecution Policy signifies an important and constructive step forward both at European and at the global level that will send a strong signal to both the European and global initia- tives for enhancing aviation safety while respecting the administration of justice. 13 EUROCONTROL © March 2014 – European Organisation for the Safety of Air Navigation (EUROCONTROL) This document is published by EUROCONTROL for information purposes. It may be copied in whole or in part, provided that EUROCONTROL is mentioned as the source and it is not used for commercial purposes (i.e. for financial gain). The information in this document may not be modified without prior written permission from EUROCONTROL. www.eurocontrol.int SIPTF/4-IP/2 International Civil Aviation Organization 17/1/13 English only INFORMATION PAPER SAFETY INFORMATION PROTECTION TASK FORCE (SIP TF) FOURTH MEETING Montréal, 21 to 25 January 2013 JUST CULTURE (Presented by the Roderick van Dam) 1. INTRODUCTION 1.1 Accidents and incidents happen. They form part of our daily life and we accept their occurrence, also in Air Traffic Management (ATM) and air transport, because we hope and expect that we can avoid by far the most of them by our actions, professionalism and by abiding by established rules and practices. 1.2 Ever since the investigation of aviation accidents was undertaken in a systematic manner with the specific aim of using the findings of each accident investigation for the prevention of other accidents, the problem of the use of these findings for other than accident prevention purposes has been manifest. 1.3 Improving aviation safety depends to a large extent on the feedback of knowledge generated by a system of accident/incident data collection and analysis. Such a system serves the industry, as well as its regulators, by allowing it to adapt and improve equipment and procedures. A high-quality output of the system very much depends on the existence of systematic records traceability and active participation and reporting from all the aviation actors involved in safety areas. In the U.S. and Europe, for example, well developed accident prevention processes are in place, including mandatory and voluntary incident reporting systems and independent accident investigations. 1.4 From relatively early days the International Civil Aviation Organization (ICAO), in setting international rules and recommendations for improving safety, has been confronted by the need to protect aviation safety interests from those parties that want access to investigation results and other safety data with the goal of what ICAO calls apportioning blame or liability. Therefore, ICAO rules, in the interest of an uncompromised safety investigation process, are often seen as advocating a protection against the interests of what is often referred to as “the administration of justice.” 1.5 The administration of justice, in particular in the criminal law domain, constitutes one of the pillars of State sovereign functions; they are usually firmly embedded at constitutional level. Both the Convention on International Civil Aviation (hereafter the Chicago Convention) and the EUROCONTROL Convention explicitly confirm the complete and exclusive sovereignty of a State over its territorial airspace. That certainly includes the administration of justice. States are of course free to choose to delegate or pool certain sovereign functions, as is the case with the European Union membership, but criminal jurisdiction, with only a few exceptions, generally remains firmly embedded at State national level. (4 pages) SIPTF/4-IP/2 -2- 1.6 The issue of Criminalisation of Aviation accidents or incidents illustrates the delicate relationship between the propagation of aviation safety and the Administration of Justice in the Aviation domain. These are two distinct worlds that seldom meet. One is by nature international, dynamic and very sensitive to safety; the other is by nature national, resistant to progressive change and very sensitive to the rule of law. No wonder that their interaction, or perhaps the lack of it, generates difficult and often passionate discussions. 1.7 Accidents and serious incidents very often occur as the result of a series of events that in an eerie and inevitable way lead to disastrous results. When mistakes are involved they can often be labelled as “honest” mistakes that would not qualify as criminal behaviour. Controllers and Pilots are professionals who are ready to realise that nobody can claim criminal immunity in any civilised country. But it is equally true that a small, but highly visible, number of cases raise questions on the relevance and motives of some criminal prosecution and court cases. 1.8 And here lies the root of the issue: Who will determine whether a mistake was made by a qualified professional acting in a responsible manner or whether this was a clear case of gross negligence, wilful misconduct or criminal intent, to use just a few of many legal terms for criminally reproachable behaviour. That cannot be a chief pilot or a control room supervisor. Such a call can only be made by a professional in the judiciary: a prosecutor and ultimately a court of law. 1.9 The key is what happens next: A qualified criminal investigator or prosecutor must assess whether under the applicable criminal law the actions leading to the accident/incident warrant further steps (investigations, indictment). A number of high profile accidents and serious incidents did result in criminal investigations and proceedings and have raised strong concerns from the Air Traffic Controller and Air Transport Community about the Criminalisation of Aviation. That is not all. Events have shown that further complications could arise as a result of public and media pressures that generally accompany any crash or serious incident with the associated “search” for a guilty party. 1.10 The ongoing discussion on criminalisation of aviation incidents and accidents shows the concerns on the intrusion by the judiciary in the all-important effort to enhancing safety in aviation. It also shows a tendency to use “criminalisation” as the epitome of misdirected and unwarranted activities by the authorities and to argue that the safety domain should therefore be protected from any action by the prosecution. 1.11 The problem is that invoking real or alleged criminalisation of aviation incidents or accidents as a justification for protective legislative action does not really work. All the regional and global rules and standards related to the protection of safety data and investigative processes in aviation create an exception for the actions of sovereign State in the exercise of the administration of justice. What we need now is equilibrium between two equally relevant goals: aviation safety and the administration of justice. 1.12 Rather than trying to shut up the Judiciary, focus has now shifted towards initiating a dialogue between the national authorities concerned. A better understanding of the consequences of a judicial inquiry must be the starting point. In most States, national criminal legislation provides prosecutors with a level of discretion as to how to apply those laws; a clearer appreciation of the associated safety consequences may actually result in a better and more efficient application of those laws. 1.13 This is where the JUST CULTURE initiative, as originally developed for aviation by EUROCONTROL, enters the equation: “A Culture where front line operators are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated.” SIPTF/4-IP/2 -3- 1.14 In ICAO, the discussions and findings of the 36th Assembly, the AIG Divisional meeting in 2008 and the recommendations of the ICAO HLSC in March 2010, resulted in resolutions A37-2 and A37-3 of the 37th General Assembly on the sharing of safety information and the protection of safety data. Both resolutions, using the description of the Just Culture initiative instructed Council to strike a balance between the need for the protection of safety information and the need for the proper administration of justice. The Assembly furthermore noted the need to take into account the necessary interaction between safety and judicial authorities in the context of an open reporting culture. The SIPTF was, among other, created as a result of these findings which to a great extent have inspired the work of WG 3. 1.15 In Europe, the EU has not only formally enacted Just Culture as part of EU law by the introduction of Performance Regulation (EU) No 691/2010 , but it has also recently introduced elements of it in Regulation (EU) No 996/2010, governing air accident and incident investigation that also addresses the need to achieve a balance between the objectives of the judiciary to determine whether criminality was involved, and the need for the aviation industry to be able to run a real-time self-diagnostic system without unnecessary interference from Justice. 1.16 EU Regulation 996/2010 stipulates that its purpose is dual: to regulate both "the investigation and prevention of accidents and incidents". It says: "An accident raises a number of different public interests such as the prevention of future accidents and the proper administration of justice. Those interests go beyond the individual interests of the parties involved and beyond the specific event. The right balance among all interests is necessary to guarantee the overall public interest." 1.17 At the root of the Just Culture Concept (or by any other name as long as it addresses the same processes) lies the understanding that there is realistically no other way forward. Formal legislation fully protecting pilots or controllers or sidelining criminal prosecution is a dead-end street as demonstrated by all the existing national, regional and international legislation. On the other hand, providing a realistic expectation for a controller or a pilot that the chances are very minimal that he/she would ever be invited to be part of a preliminary criminal investigation, let alone prosecution, will strongly promote a sound basis for continued incident reporting and even measured and balanced accident investigations. 1.18 Just Culture represents the fundamental recognition that both the aviation safety drive and the administration of justice will profit from a carefully established equilibrium, moving away from criminalisation fears. It is based on the understanding that controllers and pilots can blunder and that the line between an “honest mistake” and intentional or reckless behaviour can only be drawn by a judiciary professional. 1.19 That is easier said than done, of course. But the time has come to seriously query the added value of endless and generally unsuccessful efforts at International level to “protect” controllers and pilots against judiciary actions by creating standards, regulations and laws that are supposed to shield them against interference by justice. 1.20 We still hear the one-liners on “Criminalisation of Aviation” as the root of all evil and predictions of local Gurus that the laudable concept of Just Culture has largely failed. Much has happened since the inception of Just Culture in Aviation around 2006 and anybody who would venture to already judging the effects of Just Culture and what it stands for at this moment, simply shows a troublesome lack of information or understanding, perhaps of both. 1.21 Just Culture is not the “magic wand” against injustice and misuse of judiciary processes. It has been introduced to protect as much as possible the mundane but ever so important ongoing processes of incident or occurrence reporting: literally thousands of daily events that feed into the well SIPTF/4-IP/2 -4- established system of using the reports for the improvement of safety and the prevention of incidents and accidents. It is an ongoing daily routine, certainly not as spectacular and awesome as the aftermath of an accident, but absolutely vital for the continued effort to improve safety by learning from mistakes and other relevant occurrences. 1.22 This is perhaps a good moment to point out that this paper primarily focuses on the introduction and benefits of Just Culture at State and International level and on the interaction between safety experts and the judiciary. At (national) corporate level, in the interaction between management and staff of, e.g., airlines and air traffic service providers, Just Culture of course plays an equally important role in the acts of pilots, controllers and other front-line operators and the application of company rules, contract- and labour law. 1.23 A lot of progress has already been made in this domain through safety management and related practices and the new Annex 19 will certainly also play an important role in this area. It is important to note that these developments will also require the recognition and perhaps harmonization of corporate just culture with the criminal law requirements and policies at State level. 1.24 In their meetings in May and in December 2012, the members of the EUROCONTROL Provisional Council (39 States and the EU), unanimously endorsed respectively a “Model Policy regarding criminal investigation and prosecution of civil aviation incidents and accidents” and the creation of a group of dedicated high-level experts through “Prosecutor Expert Courses” that were developed by the EUROCONTROL Just Culture Task Force (JCTF) based on existing Dutch and UK practices and in close cooperation with IFATCA. 1.25 These deliverables open the possibility for States to implement at national level a policy which fully respects the sovereign administration of justice by a state in aviation cases, while at the same time recognizing that prosecution should only be effected in cases of gross negligence or willful misconduct. They also provide for a dedicated pool of experts as a source for objective information and technical support that the judiciary may avail of in the exercise of their functions in the aviation domain. 1.26 Our focus has to lie in the pursuance of the practical goals identified by the Just Culture activities. The real work has started and we are well on our way – the JCTF has now switched to a delivery mode as far as the proliferation of the model aviation prosecution policy and the start of the first prosecutor expert courses are now well on their way. After the historic support from the full EUROCONTROL 39 State membership and the EU for these deliverables, the obvious next step will be to submit them for global consideration in ICAO through the Safety Information Protection Task Force (SIP TF). 1.27 Just Culture is not an easy concept; it requires understanding of the different processes and commitment by both safety people and the judiciary. And let there be no mistake: Just Culture also implies that misuse of criminal processes or ignorance from the part of the Judiciary is equally unacceptable! There is still a long way to go, in Europe as well as in ICAO, but most of the signs are outright encouraging, as witnessed by the discussions in the SIPTF and reactions from third parties. 1.28 Finally, as good concepts often are in essence simple ones, I would submit that the summary of Just Culture, of reconciling safety and justice interests, can be reflected as follows: 1.29 IT TAKES TWO TO TANGO! — END —