Brazil's law 12.970/2014 brought the country's legislation into agreement with the Chicago Convention's Annex 13, giving safety priority over punishment, but has suffered push-back from prosecutors. This year the prosecutor-general challenged as unconstitutional provisions that require a court order for access to safety investigation data, and even the principle that voluntary testimony given in a safety investigation, and the investigation's conclusions, can't be used in court. The challenge is waiting to be heard by the Supreme Court as ADI 5667, and has garnered amicus curiae briefs in favor of the sanctity of safety investigations from aviation union SNA (Sindicato Nacional de Aeronauta, the TAM airline workers' association). An association of accident victims' relatives has asked to present a brief.
Progress in Law and in Practice
The law, which took effect in 2014, does not eliminate the criminalization of aviation accidents, but instead separates safety investigations and legal proceedings, giving priority to the safety or SIPAER (System for the Investigation and Prevention of Aeronautic Accidents) investigation. A court investigation can, with a judge's order, use some of the safety investigation's data, but not its conclusions. To facilitate independent investigations, Cenipa trains police in aviation techniques and can loan one of its experts, not involved in the specific investigation, to aid police. The reserved data includes voice and data flight recorders and recordings of ATC transmissions. Additionally, the law confers a special status on voluntary testimony in safety investigations, which cannot be used as proof in legal proceedings, even with a judge's order.
Explaining Safety
Laws are more easily passed than respected, so the safety community has been regularly evangelizing the safety doctrine, with courses aimed at prosecutors and judges, speeches to bar association meetings, and articles in the legal and general press, the last in more popular language. A leading proselytizer, federal judge and former accident investigator Marcelo Honorato, wrote in the country's largest circulation newspaper, the Folha de S. Paulo:
“While an aviation investigation only aims to prevent new accidents, taking even hypotheses into account, a criminal investigation moves in another direction, in search of elements proving authorship. One looks to the future, while the other focuses on the past.”
Arguments For and Against
The prosecutor-general claims that the law interferes with constitutional norms and prosecutors' privileges. Besides the sanctity (called “impunity”) of voluntary testimony the law confers, he disagrees with the practice of manufacturers examining their own products after an accident; he argues that if air safety accidents can have special status, why not medical accidents, or maritime accidents, or any other accident; and wants judges to be able to use safety investigation conclusions, since, “It can be presumed that legal bodies have sufficient capacity to weigh factual and objective elements […] and separate them from the subjective evaluations of aviation authorities.” In his Crimes Aeronaúticas Honorato cites a number of verdicts disproving that presumption.
The argument also includes semantics. The prosecuter-general contends that in many Western European countries, a prosecutor qualifies as a judicial authority. He also cites the Chicago Convention clause that lets a country investigating an accident share information with the aircraft's country of registration, and permitting safety investigators to share data with other authorities, such as prosecutors.
Since the ADI seeks to declare a law unconstitutional, it's brought against those who passed and signed the law, both houses of Congess and the president. The Senate defends the law, arguing that it is the result of years of hearings and consultations:
In other words, the legislature preferred to prioritize the maximum unraveling of the risk factors involved in the accident to prevent further deaths, to punishing the guilty. Knowing what potentially happened and thus being able to mitigate the chances of new tragedies was seen as more important than contributing to the punishment of errors and crimes. This in no way affronts the Constitution.
The legal counsel for Cenipa, Brazil's accident investigation body, produced what it carefully describes as not a legal brief, but a study that traces progress in air safety and the adoption of “Just Culture.” According to the study, there has not been a single concrete case of the rules impeding a legal investigation in the more than 400 safety investigations since the law went into effect in 2014. Cenipa also contends: "The greater the freedom of flow and the dynamics of information, in direct proportion increases the possibility of predictive intervention to promote prevention. And the reverse is true, the smaller the flow of information (voluntary reporting) is, or it being interrupted, the smaller the opportunities for intervention in the trajectories of opportunity and, consequently, the greater the operational risks of aviation activity."
Prospects
The Brazilian legal system is prone to glacial slowness and endless appeals, but as this case was presented directly to the Supreme Court, it can't be further appealed. The requirement of a judicial order is not onerous even if prosecutors think it steps on their prerogatives, and flight recorder data, for example, is available to police investigations. There have been and still are cases of trial judges misinterpreting safety final reports as finding of fact rather than as findings of possibilities, and while the law as it stand prohibits that, only continued outreach will reduce such errors. The most dangerous attack is on voluntary testimony, since if witnesses can't speak freely, they simply won't speak.
