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Brazil Advances in Decriminalization of Investigations into Aviation Accidents and Incidents




by:
Julio Costa
Gustavo Lasalvia
Tauil & Chequer Advogados in association with Mayer Brown LLP - Rio de Janeiro Office

 
May 22, 2014

Previously published on May 20, 2014

On 9 May 2014, after more than eight years in course before the National Congress, Law Bill No. 2453/2007 was finally sanctioned by President Dilma Rousseff, becoming Ordinary Law No. 12970/2014.

The law in question provides mainly for investigations into accidents, incidents and occurrences on the ground relating to aviation, and brings the country more into line with the international legal scenario, since it follows the principles established by the Chicago Convention on International Civil Aviation 1944, ratified and approved by Brazil through Decree 21.173/1946.

Among the main innovations introduced by Law No. 12970/14, most notable are the merely preventive consolidation of investigations involving aircraft accidents and incidents; concern about the confidentiality of the sources of information used for such investigations and, as a general rule, the prohibition on the use of investigative findings as evidence in judicial and/or administrative proceedings.

The primary goal of these changes was to have such investigations conducted "solely for the benefit of the operational safety of air activities", creating mechanisms for all those involved, directly or indirectly, in particular accidents and/or incidents to be able to collaborate with assessing the contributing factors, in the confidence that they will not, in any way, be coerced or penalized (even if they may have contributed to the occurrence of the event).

Accordingly, Law No. 12970/14 also provides that all information supplied in connection with the investigations "will be spontaneous and based on the legal guarantee of its exclusive use for the purposes of prevention", allowing - only under exceptional circumstances - its use as evidence, and even then, covered by secrecy orders.

Although the Brazilian Aeronautical Code (Law No. 7565/86) made provision for the System for Investigation and Prevention of Aeronautical Accidents, its provisions seemed insufficient and somewhat distant from the context of the most modern doctrines of flight safety, and the way that information related to investigative activity in the sector is dealt with internationally.

In practice, there is a consensus in the airline industry that the lack of up-to-date laws, able to address clearly and appropriately the information obtained through these investigations was prejudicial to the prevention of further accidents and to operational safety in the air industry.

Despite the undeniable progress represented by Law No. 12970/14, the wording of some of its articles - especially those related to the removal and custody of the wreckage of damaged aircraft - requires a better legislative technique, and may lead to contradictory interpretations.

In any event, it is expected that Law No. 12970/14 can correct some of the shortcomings in the legislation hitherto in force, encouraging on the one hand, access to information that may help in the prevention of aviation accidents and incidents, while at the same time ensuring that those who participate in investigations will not suffer losses as a result of collaborating in such investigations.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Julio Costa
Gustavo Lasalvia
 
Tauil & Chequer Advogados in association with Mayer Brown LLP Overview