19. November 2019

Four months after the verdict against an air traffic controller of Skyguide, Switzerland’s air traffic control provider, in an airprox case (see blog of 17 July 2019), the Federal Court, Switzerland’s highest court, acquitted an air traffic controller of Skyguide in what seems to be a quite similar case (decision of 29 October 2019, 6B_332/2019). On 15 March 2011, the air traffic controller had given start clearance to two aircraft on crossing runways practically at the same time. The two aircraft would have collided had one of the aircraft started five seconds earlier. The Supreme Court of the Canton Zurich had found the controller guilty of disruption of public traffic pursuant to Article 237 of the Swiss Criminal Code. The Federal Court granted the controller’s appeal against this decision. It came to the conclusion that the lives of crew and passengers had never been in danger and therefore one of the conditions for a conviction pursuant to Article 237 of the Swiss Criminal Code was not met. It is not easy to reconcile this decision with the highly criticized decision of 27 June 2019 (6B_1220/2018) with which the Federal Court only four months earlier had confirmed the conviction of a controller because of violation of Article 237 of the Swiss Criminal Code even though there had never been a risk of a collision either. The difference seems to be that, in the view of the Federal Court, there might have been a risk of collision in case of bad weather conditions, turbulences, etc. This distinction is not persuasive, and it is difficult to explain why the controller is convicted in the one case and acquitted in the other, in which the controller seems to have been much more negligent. It is to be hoped that future decisions bring more clarity.