17. Juli 2019

The Federal Court, Switzerland’s highest court, confirmed a verdict of the Federal Criminal Court against an air traffic controller of Skyguide, Switzerland’s air traffic control provider, for disruption of public traffic pursuant to Article 237 of the Swiss Criminal Code (decision of 27 June 2019, 6B_1220/2018). On 12 April 2013, an air proximity hazard occurred after an air traffic controller had allowed an aircraft to move to a higher flight level. He had not confirmed flight numbers and confused two aircraft. Even though the controller argued that telecommunication was bad, the Federal Court concluded that the controller had been negligent. In the view of the court, it was irrelevant that there had never been a risk of a collision. The controller was sentenced to a suspended monetary penalty of 60 days of CHF 300, subject to a probation period of 2 years. This verdict re-fueled the on-going discussion about the vulnerable relation between criminal law and „just culture“, the well-established practice in aviation to report safety incidents and hazardous conditions, which contributes to the improvement of safety standards. While many in the industry fear that this verdict endangers the high safety standards in aviation, others point out that aviation cannot be exempted from criminal law. Also, the question arises whether Article 237 of the Federal Criminal Code and the decision of the Federal Court sufficiently take into account the complexity of aviation. According to Article 237 of the Swiss Criminal Code, any person who wilfully or by negligence obstructs, disrupts or endangers public traffic, in particular traffic on the roads, on water or in the air, and as a result knowingly causes danger to the life and limb of other people is liable to a custodial sentence not exceeding three years or to a monetary penalty.