Balance between justice and safety Luís Esteves – APPLA

Balance between justice and safety Introduction Crime Legislation Conclusions and Possible Solutions

Introduction Problem between juridical principles and aircraft safety fundamentals. Protection from juridical use seems incongruent. Both systems can not work properly on the same data. Balance of public interests.

Introduction The mechanism regulating this balance is present on all documents and legislation. In reality this balance does not work and data is not confidential. Only penal laws are in control of this balance.

Balance between justice and safety Introduction Crime Legislation Conclusions and Possible Solutions

Crime Crime is an human action specifically described on criminal codes. In Portugal the crime of dangerous operation of air transports (art. 289º cp.) has two main conditions: Gross violation Creation of danger to property or humans.

Crime investigation consequences on safety Judicial investigation will use evidence. Data from safety investigation is evidence. Lack of confidence on safety investigation. Administrative process and penalties. Media and political pressure. Personal involved suspended from their duties.

Balance between justice and safety Introduction Crime Legislation Conclusions and Possible Solutions

Legislation Annex 13. The protection of data has a balanced limit: Administration of Justice and impact of data disclosure on future investigations. This balance must be in legal harmonization with state laws. Disclosure of data is determined by state penal laws.

Legislation SDCPS Recommended by ICAO / Directive Nº 2003/42/CE applies in Portugal as law DL-218. The system is depersonalized and compulsory. The data collected is limited by penal laws. Even the authority responsible for such data should take action if in presence of gross negligence or suspicion of crime.

Legislation Safety investigation authority. Recommended on Annex 13 / Directive Nº 94/56/CE applies in Portugal as law DL-318. This organism has access to all data available and makes final reports on accidents / incidents. The data collected has a confidentiality limit by penal laws: Judicial Authorities have access to this data. Investigators must report to Judicial authorities. All administrative personal has the duty to report to Judicial Authorities.

Balance between justice and safety Introduction Crime Legislation Conclusions and Possible Solutions

Conclusions. Internacional Laws must be harmonized with state laws. Big changes to law codes is a problem. Changing laws extensively to get an acceptable level of confidentiality could be dificult on short term.

Conclusions and Possible Solutions Possible Solutions Its fundamental to have a good penal law. This law must only consider crime if in presence of: Gross violation Danger to persons or property To have judicial authorities sensible and fully aware of the problem and only then can both try to find some solutions.

Conclusions and Possible Solutions Possible Solutions Building reporting systems of natural confidential data on human factors. Natural data is data concerning persons themselves. It only exists because they confessed it. Exists if out of reach from crime investigations. Judicial authorities must be aware of this specific type of data. Data naturally out of their reach.

Conclusions and Possible Solutions Possible Solutions Pre-evaluation of evidence by both investigations. Evaluate suspicion of crime prior to judicial inquirie. Reducing damage to safety investigation. Reduce pressure on pilots, operators, airlines and governments, specially pressure from media.

Conclusions and Possible Solutions Possible Solutions Creation of reporting systems on human factors under control of independent safety investigation organisms. Confidential and depersonalized. For statistic analisys. No possibility of tracking personnel involved. Confidential even if request by criminal investigators.

Conclusions and Possible Solutions Possible Solutions Clarification of CVR data release. Legislation for data disclosure limitation. Limit for general public and media. Spirit of labour laws / exception to personal rights as constitutional rights. Purpose of CVR data is to increase safety and not to be an intrusion on personal rights by public release.

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