Diapositivo 1

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Balance between justice and safety
Luís Esteves APPLA
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Balance between justice and safety

• Introduction
• Crime
• Legislation
• Conclusions and Possible Solutions

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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.

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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.

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Balance between justice and safety

• Introduction
• Crime
• Legislation
• Conclusions and Possible Solutions

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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.

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Crime investigation consequences on safety

• Judicial investigation will use evidence.
• Data from safety investigation is evidence.

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Balance between justice and safety

• Introduction
• Crime
• Legislation
• Conclusions and Possible Solutions

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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.

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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.

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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.

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Balance between justice and safety

• Introduction
• Crime
• Legislation
• Conclusions and Possible Solutions

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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.

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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.

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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.

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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.

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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.

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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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Thank you