Prosecutors continue to meddle in ongoing aviation accident investigations, much to the displeasure of air safety advocates who warn that such interference hampers efforts to improve air safety and prevent similar accidents in the future.

The trend toward criminalization is already having a chilling effect, prompting critically-needed controllers to abandon their profession for fear of prosecution. In addition, it is also holding up air safety investigations into two accidents in Europe in the last year. However, in addition to the obvious impact on the accident investigation itself, such trends threaten some of the greatest contributions to aviation safety such as the Aviation Safety Action Program which calls for self reporting to catch trends that could lead to an accident. The fear is that this, and other programs aimed at using data-driven methodologies to improving aviation safety could ultimately become a mine of information for those seeking to criminalize aviation accidents and incidents.

Air safety advocates are critical of a Dutch prosecutor who early on interjected himself into the Turkish Airlines Flight 1951 accident investigation by the Dutch Safety Board. The Boeing 737-800 (TC-JGE) crashed short of landing at Amsterdam's Schiphol Airport on Feb. 25, killing nine of the 135 people aboard (128 passenger and seven crew) and injuring more than 50 others.

Kenneth P. Quinn, general counsel of the Flight Safety Foundation (FSF), said a prosecutor in The Netherlands “started acting like he was in charge of the Turkish Airlines fatal accident probe, and did so until the Dutch Government stepped in and told him that the accident investigation process had primary jurisdiction and he was not to interfere.”

Quinn, a partner at the law firm of Pillsbury, Winthrop Shaw Pittman LLP, said “the Dutch prosecutor seemingly stood down and there were no further high profile remarks regarding a criminal investigation.”

The incident is not isolated. “We are seeing increasing attempts by prosecutors to seize control of the so-called chain-of-custody evidence in building a criminal case, asserting primacy of jurisdiction on the accident investigation process,” stated the veteran aviation attorney. “They need to step aside and make room for the accident investigation process to work.”

Quinn sees a growing tendency of verdict-hungry prosecutors and judges to seek criminal sanctions in the wake of aviation accidents, even when the facts do not support findings of terrorism, sabotage, criminal negligence, willful misconduct or particularly egregious reckless conduct. He says there is a tendency to turn an aviation accident site into a crime scene. And there is an expanding net of potential defendanst, including pilots, air traffic controllers, air safety regulators, aircraft designers and corporate officers.

Aside from The Netherlands, celebrated cases have arisen worldwide, including the United States, Greece, Italy, Switzerland, France, Indonesia and Brazil. Manufacturers involved in the prosecutions have involved at least Embraer, ATR, Airbus, Cessna and Boeing. During the 1980s and 1990s, general aviation manufacturers cited accident lawsuits for stemming innovation because manufacturers of everything from avionics to aircraft were afraid to bring real innovations to market for fear of ultimately becoming embroiled in a law suit. The industry pushed for Tort Reform as a result. But the trend toward criminalization threatens aviation safety itself.

“In recent years, prosecutors and willing judges around the world have turned the powerful weapons of criminal prosecution against what are simply tragic accidents, the result of mistakes, not willful actions,” Quinn remarked. “…Prosecutions have turned into persecutions and chilled the free admission of mistakes,”

Accident investigations and criminal trials are “two very different cultures,” said Quinn. “To seize and hold evidence and order interrogations is just flatly at odds with gaining safety information,” he added.

Quinn argues that administrative and civil remedies, such as steep fines, license suspensions or revocations, nearly always exist for those seeking answers, change or revenge. “Increasing safety in the aviation industry is a greater benefit to society than seeking criminal punishment for those ‘guilty’ of human error or tragic mistakes,” reasons Quinn.

The Flight Safety Foundation has also sharply criticized prosecutorial interference in ongoing aviation accident investigations in Italy and France. It said the accident probes of a Cessna Citation 650 accident in Rome on Feb. 7, 2009 and the fatal crash of an Air New Zealand Airbus A320 on Nov. 27, 2008 into the Mediterranean Sea are being held up because law enforcement authorities seized vital evidence before safety investigators could examine it.

The French authorities subsequently returned some of the Airbus evidence to safety investigators. However, Italian authorities still have not shared the evidence. Laws in both countries allow the judicial investigation to take the lead, and vital safety evidence, such as the cockpit voice and flight data recorders, historically has been withheld from safety investigators.

"Unless there is evidence of sabotage, law enforcement and judicial authorities need to step aside, allow accident investigators immediate access to the wreckage and to surviving crew and passengers, and let safety professionals do their job," said FSF President and CEO William R. Voss. “It's far more important that we learn what happened, and why, than to build a criminal case. Reports of interference with the accident investigations in Italy and France are very troubling; we simply cannot allow these obstacles to keep us from learning and acting quickly after a crash,” he added.

Voss said he understood how the public's shock and grief leads to calls for justice and accountability in the wake of an aircraft accident, but added, "We cannot allow the safety of the aviation system to be jeopardized by prosecutorial overreach."

Investigators seek to identify the cause of the fatal Citation III (I-FEEV) crash shortly after takeoff from Italy's Rome Ciampino airport, killing the two crew members. The aircraft operated by Air One Executive was en route to Bologna, where it was due to pick up a medical team. Visual meteorological conditions prevailed at the departure airport for the flight to Bologna.

According to preliminary reports the aircraft encountered a bad thunderstorm during the initial climb. Witnesses saw lightning before hearing an explosion caused by the impact of the Citation hitting the ground.

A year from now, a French court will try Continental Airlines and five individuals for the crash of an Air France Concorde SST on July 25, 2000, killing 113 people. The defendants, including the person who oversaw the development of the supersonic jetliner, are charged with involuntary manslaughter. Continental has denied any responsibility for the fatal accident and said it will fight any charges. Quinn said the trial is “highly troubling.” The shortcomings with that accident were detailed in 45 minutes of coverage by Dateline recently.

The Concorde crashed after taking off from Charles de Gaulle Airport. The crash investigation concluded that a narrow strip of titanium had fallen onto the runway from a Continental DC-10 that took off before the supersonic aircraft. The debris burst a tire on the departing Concorde sending shrapnel into the aircraft’s fuel tanks, igniting a fire. Air France filed a lawsuit against Continental following the discovery of the metal strip.

Among the five individuals who will face charges in a French court are two Continental technicians. A second person who worked on the Concorde development and the head of France’s civil aviation authority at the time of the crash will also stand trial.

A French prosecutor alleges that the Continental workers failed to follow normal procedures over repairs to the DC-10 and that Continental itself had been negligent in maintaining its fleet of DC-10s.

An earlier French judicial report said the Concorde's manufacturer Aerospatiale, now part of plane-maker EADS, failed to correct its design after more than 70 incidents involving the plane's tires occurred.

The prosecution says France's civil aviation chief was also negligent because his agency had the responsibility to enforce design safety for the Concorde, which did not provide extra shielding to its underwing fuel tanks until after the 2000 crash.

The crash of New York-bound Flight 4590 was the only fatal accident involving the small Concorde fleet that was retired in 2003. “It’s terrifying to think that someone can be prosecuted eight years after the fact,” said Voss.

He added: "Like other recent and failed attempts to criminalize aviation accidents in France, these manslaughter charges appear rather dubious and short-sighted. Absent willful intent or highly egregious conduct, we seriously question the basis for putting companies and aviation professionals through the ordeal of criminal prosecutions. In addition, we're very concerned criminal prosecutions will discourage the free flow of information from operators to management to regulators, to the detriment of aviation safety.”

Meanwhile, a Garuda Indonesia Airways captain is standing trial on a manslaughter charges in a case that has reignited industry protest against accident criminalization involving pilots and air traffic controllers.

Indonesian authorities charged Capt. Marwoto Komar, saying the Boeing 737-400 pilot ignored repeated cockpit alarms and warning that the landing of his Boeing 737 was too fast. Twenty-one of 140 people on board were killed when Garuda Flight 200 skidded off the runway in Yogyakarta, Java, on March 7, 2007, and burst into flames in a rice paddy. He faces a prison sentence that could exceed five years.

The Jakarta Globe reported that Indonesian air traffic controllers are leaving the profession in fear of prosecution. The newspaper says nearly 30 experienced Indonesian air traffic controllers have left their jobs to look for work abroad amid fears they could be targeted for criminal prosecution for accidents or mishaps. The Indonesian Air Traffic Controllers Association (IATCA) says the exodus was triggered by the prosecution of the Garuda Indonesia pilot.

Quinn said “the last thing we need in Indonesia right now is a drain on aviation safety resources, aviation professionals. This kind of drain can be quite troubling.”

Concludes Voss: “Around the world, the behavior of prosecutors reflects, to some degree, the growing mistrust of the public. Prosecutors are very much after someone to blame and very much concerned with assigning liabilities, willing to interfere with accident investigators. It’s very troubling.”

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