37TH ANNUAL CONFERENCE, Toulouse, France, 30 March – 3 April 1998WP No. 155-2Review of Existing Policies (Legal) |
Editor’s Note: As this particular WP reviewed several areas of IFATCA Legal Policy, only that part which refers to the actual Policy described here is shown.
Introduction
The review of Existing IFATCA Policies (Legal) continues on the work Programme of SC7. Presently, IFATCA Policies relating to Legal Matters can be found in the IFATCA Manual pages 4401-4441 and IFATCA Policy Documents are on pages 44-A1 and 44-B1.
IFATCA’s Legal Policy comprises of the following sections:
1.3.1. Legal liability of the Controller
1.3.2. Accident and Incident Investigation
1.3.3. Legal Assistance
1.3.4. Unlawful Interference with Civil Aviation and its Facilities
Additionally there are attachments to sections 1.3.2. and 1.3.4.:
1.3.2. IFATCA Policy Document on Accident and Incident Investigation
1.3.4. IFATCA Policy Document on Unlawful Interference with Civil Aviation and its Facilities
Discussion
Last year this Committee came to the conclusions that there was room for more work to be done especially in the areas of the Legal Liability of the Controller and Legal Assistance. WPs that were adopted as Guidance Material at past Conferences should be included in the IFATCA Manual since they hold a status similar to IFATCA Policy. (These will now be included in the IFATCA Professional Manual) That more background information with regards to certain Professional Policies needed to be gathered and placed in a Professional Manual so as to ensure its ease of accessibility
It is believed that words such as “deliberate act” and “criminal negligence” as found in paragraph 1.1.3. should not be used in this instance.
Air Traffic Controllers are human and by extension fallible. Their functions and responsibilities are quite enormous. Actions that may therefore be classified as ‘deliberate acts’ or “criminal negligence’ can actually be as a result of job related stressors and not criminal or deliberate acts. The nature and functions of the ATC job is quite explicit. Therefore, legal policy/interpretation should be viewed simply from its grammatical and literal rule of interpretation so as to avoid ambiguity. Paragraph 1.1.3. should be amended to read:
“IFATCA can never support any controller who is guilty of negligence of duty. However, the Federation must reserve the right to use any legal means available to it to protect any member who is accused of such crime”.
With regards to paragraph 1.1.4., it has been found that the actual proof of ”mens rea” can be quite a difficult task before the jurist. The Air Traffic Controller has the fundamental training to provide safety for aircraft and its passengers. It is therefore unthinkable that his actions that resulted in an incident/accident were premeditated. Reasons expressed in this WP mentions the possibility of errors occasioned by stress. Therefore, paragraph 1.1.4. should be deleted because of the difficulty of proof of “mens rea”. Based on the information given this WP, the words “mens rea” should also be omitted from paragraph 1.1.5 of the Professional Policy.
Paragraph 1.1.5. should now read:
“All other cases involving an Air Traffic Controller must fall under Civil Law, and must be heard by a competent civil court, and must be subject to the following conditions…”
Conclusion
It is believed that the suggested amendments mentioned above will assist in clarifying issues related to the legal liability of the Controller and legal assistance for IFATCA’s MAs. Some of these amendments will also ensure that the acquiring of relevant information will be better facilitated.
Last Update: September 28, 2020