Selections from verdict by judge Murilo Mendes, trial of controllers in Gol 1907 accident.
Common Arguments of the Defense. Examination.
I agree fully with the thesis that, to examine the crime without intent, the judge should be attentive to objective foreseeability, guiding his analysis by the evidence in the concrete situation. It is the concrete situation which will say whether in this or that situation a crime without intent occurred. I have always reiterated this understanding, and I so do with the proposition of leaving it very clear that there is no direct relationship between an infraction of regulations and a crime without intent. One cannot say after all: “the agent broke a rule; therefore he committed a crime without intent”. I have already said, elsewhere, that the exposition of motives in the Criminal Code does not authorize this rationale. Quite the contrary. “To arrive at the criminal responsibility of the causer”, emphasizes Pierangeli, the judge must make a hypothetical judgement, since criminal responsibility, in the crime without intent, can only be measured ex post facto, as Jescheck warns. It is only after the causation that one can reach a conclusion about whether there was or was not criminal responsibility; only afterwards can we survey if there was a violation of the duty of objective carefulness, and if the result flowed from this failure to comply” [unmatched quotes sic] (Escritos Jurídicos-Penais. São Paulo: RT, 1999, p. 446) On this point, therefore, the defense can rest assured that I have not abandoned my criteria in the examination of conduct.
As to the fact of the Air Force not having fulfilled its duty to verify in detail and indicate solutions for the “almost accident” said to have occurred in 1996, the information, if true, only reveals sloth on the part of the military service, not being enough, however, to promptly exempt the the defendants from responsibility for the conduct with which they are being charged. Negligence of a superior does not exempt, as a rule, the subordinate’s responsibility, when this effectively has blame of his own in the event. This is an understanding on which I believe there is no doubt at all. I understand what the defense wants to say. On emphasizing the problems of the aviation system, which in its view is extremely defective, does not function satisfactorily, fails repeatedly, the defense wants to say that in an atmosphere so described, errors, imprudence, or negligence committed should be, so to speak, “relativized”. It is a thesis. But it is a generic thesis. And, when the judge analyzes the defendant’s culpability, he should stick to the concrete situation -- as, furthermore, the defense’s intention, when speaking of the need for observe the principle of objective foreseeability. However, only when he (the judge) verifies that the existence of a problem in the system influenced the concrete situation described and occurred, is when he can take this argument into account as a basis for an eventual absolution.
Another point raised by the defense is in respect of the “automatic change of flight level without the controller’s consent”. I here transcribe an excerpt from an audit undertaken by the TCU: “An aircraft may not always maintain the flight level specified in the plan. In some situations aircraft receive instructions to fly at a different level than that foreseen, on the pilot’s request or to avoid traffic conflicts. The X-4000 flight system has a functionality which automatically alters the flight level at the point on the route foreseen on the plan, without the controller’s consent and independent of the real level flown by the aircraft. In normal situations this is not a problem, because the information that rules is the aircraft’s real level, presented on the left side of the label. The problem can occur when, if there is a failure of the aircraft’s transponder or of the secondary radar, the information on the left is suppressed and the label shows only the information on the level foreseen, which may not correspond to the level being flown by the aircraft.” This system of automatic alteration really does not appear to be recommended. It appears to be a system which induces errors into the conduction of air traffic. Sr. Wellington - witness - notes, in his testimony, of the fact that, in the TCU’s report, this question was raised “and it was said that it would not be changed because that would give strength to the controllers’ defense.”
This is an appalling fact. The TCU investigates a determined problem, arrives at the conclusion that it exists and, more than this, that it can result in risk to the system and, instead of taking the immediate measures within their reach, they avoid performing their duty because the initiative could favor the controllers’ defense - and this, from what the Sergeant said, in common accord with Air Force officers. If this thinking were to come from a layman, from a person not familiarized with the rules of our system, it would be excusable. But it comes from a oversight body established in the Constitution, on whose staff are people who have the obligation to understand its text, it is hair-raising. I confess I do not know just how this question reached the TCU. There are not, in the trial record, elements which allow me to reach this finding. But the affirmation is made clearly by the defense, and beyond this, was reiterated by controller Wellington when he testified in in Brasilia - in such a way that there is no reason at all for me to doubt its veracity. The allegation that the alteration was not made because it would facilitate the controllers’ defense is threadbare, legally speaking, irresponsible to the limit from the technical point of view and, as such, unsustainable in any investigative context, be it administrative or judicial. Having notice that this effrontery came from the servants of the TCU, with the collaboration of Armed Forces officers, the case recommends sending a copy of the allegations and of the controller’s testimony to the Prosecutor-General of the Republic.
I begin the analysis of the merit saying that, in judging the preliminary defense presented, I reclassified Jomarcelo's conduct from with intent to without intent, as is clear in the exert reproduced above. On this point, the decision was maintained by the Tribunal on appeal. Further, the Prosecutor's Office did not even appeal it, in such a way that the Tribunal could not even reverse the decision to the defendant's prejudice if there were no provocation from the prosecutor. Another observation. I said expressly, in the preliminary decision, that I did not see, on that occasion, the existence of any cause which could exclude the crime. It was necessary that the trial run its normal course, that more proof be produced and that the contradictory be fully exercised. Now, yes, is the time for a more minute examination of the accused's situation.
The defense emphasizes that Jomarcelo had, at the time of the accident, only nine months on the job, wishing with this to emphasize, evidently, his limited experience. And it is not only limited experience to which the defense alludes. It also refers to the testimony, in Brasilia, of Sergeant Wellington Rodrigues, experienced controller and responsible for training those entering the career of controller. The testimony, in regard to this, is in the following sense: "Jomarcelo was always a very limited controller. I followed Jomarcelo closely, even his Portuguese, being a timid person, he spoke, a very introverted person, then, even to speak Portuguese was very difficult for him. He was a controller who, for me, did not have qualifications to be a controller. That is, don't even mention English, really without any qualification at all, for me, he was very limited. He took longer, much longer, than those in his class to be approved, he kept trying and trying again, let us say, and there was always that insistence that he be approved. There was this insistence to approve him." The eminent magistrate that conducted the questioning - the deposition took place in Brasilia - wanted to know from whence the insistence came that Jomarcelo be approved. The witness explained that it was not a specific imposition, but that the insistence had as its motive in the lack of personnel. - "we knew of the difficulty of the number of operators and there was, yes, this insistence.".
The testimony is shocking. It paints a picture of complete intellectual insufficiency for the exercise of a task that carries so much responsibility, as is air traffic control. The controller barely speaks Portuguese, knows nothing of English and, worse yet, does not have mastery of the technical skills for the exercise of the job - "he was, for me, a controller who did not have the qualifications to be a controller", said the witness. A person who manifestly did not have the qualifications to be approved, was approved "by force".
From the theoretical point of view, two institutions come to my mind to examine the case: error and the inability to demand different conduct. To say that the agent was led to err is an interpretation that perhaps is too much of a stretch - although not entirely out of the question, as we will see later. After all, he knew he was taking a course to work as a controller. And it can be assumed that he knew of his grave deficiencies, because, besides being of legal age, he is a person with full use of his mental faculties. What could be demanded of him, if he were more prudent? To seek another profession, do something else, don't enter a field that he does not master? It has been said in penal law that the blame of one agent does not annul the blame of another. But this is not, however, an absolute principle.
But a judgment cannot dismiss the concrete case, because examination of the concrete case is the trial's very reason for being. Generically formulated theses have an undeniable power as conceptual paradigms. To say that a person who exercised a profession which requires a specific license cannot allege professional deficiency placing the blame on the body responsible for conceding the respective diploma or license is to still speak on the theoretical general, abstract plane. [...]
That is what happens in the present instance. The proof in the case file covers that the system approved - and consciously, in my understanding - Jomarcelo without him having the minimum qualifications to be approved. The words of Sergeant Wellington are exceedingly eloquent. They speak for themselves - "he was a controller for me who did not have conditions to be a controller." A parenthesis. The crime foreseen in Art. 261 of the Criminal Code is a crime of danger, which does not depend, therefore, on the outcome in order to be consummated. The danger should be concrete, as indicated by doctrine. But does it not configure concrete danger, by chance, when the aviation safety system put someone to work in the task of air traffic controller, when that person does not have the least qualification? He who approves people known to be incompetent for the task is not committing the crime of Article 261 of the Criminal Code? For me, it is clear that yes. I say more. I say that, at least, a person who approves someone who is not qualified can create in the person approved the illusion that he is, in fact, a professional. Even more so in the military area, where the principle of hierarchy rules. There one cannot contest a superior order, for better or worse. If the superior says, "go there and control, you are licensed, what should the subordinate say? "No, I won't go, your order is manifestly illegal!".
... Co-authorship, so long as looked at prudently, is very useful for he who applies the Law. Second point: one need merely exchange the word society for aviation system and everything works out. The co-authorship of the aviation system in the delinquent conduct flows from the indisputable fact that controller Jomarcelo was approved "in a rush", "by force", even though the one responsible for his approval knew he did not have the minimum qualities needed for the exercise of a very responsible task.
Very well. In what context is it that Jomarcelo had acted in a negligent way? The context is the following: Jomarcelo, the air traffic controller who did not have the qualities to control air traffic, operated three sectors and without an assistant. Several aircraft were under his supervision. The Operational Model provides the following in this regard: "Whenever a control sector presents, in normal conditions, a quantity equal or less than 6 (six) controlled traffic, at the Supervisor's criteria, the operation can occur without the presence of an assistant. It is up to the controller to accumulate the functions of assistant." This rule frees the assistant under normal conditions and is made, I suppose, for full approved controllers, for "controllers who know how to control". It doesn't apply, obviously, for a simulacrum of a controller. And, in any event, Jomarcelo controlled more than six aircraft, in such a way that the requirement of an assistant is imposed by the force of the rule itself. As to the system of the automatic updating of altitudes, the declaration made by the witness in Brasilia covers its unsuitability - and I have no reason to doubt the word of a someone who may even have caused himself problems by what he said. If the system is unsuitable and is capable of fooling even experienced controllers, what can one say of it when one analyzes the situation of a controller whose competence was unmasked by by the very Sergeant who examined him in training school? The Federal Court of Audit (TCU) must explain how it reached that absurd decision to not direct the correction of a system which it judged inadequate. And, further, I should say that, from 19:01 (the moment the transponder was turned off) to 19:05, Jomarcelo was busy, communicating with other aircraft, (Gol, TAM) in such a way that he probably did not see it turn off. At 19:17, he turned the post over to Lucivando. For twelve minutes, Jomarcelo did not perceive the Legacy on the screen. It would be a lot for a pilot, who controls only a panel. There is no doubt of it. But not for Jomarcelo. In truth, looking at things as they are, what can be said is that it is only by luck that Jomarcelo did not commit other errors as serious as those imputed to him by the Federal Prosecutors' Office. It was only luck, because competence, he didn't have. Perhaps he even imagined that he had it, but he did not. And he was there, alone, without an assistant, without a supervisor, he and his lack of knowledge, he and his inaptitude to exercise the function, he and his license in his pocket, conceded irresponsibly, only because the system needed people to work.”
The psychological report appended by the defense, with its briefs, thus describes Jomarcelo's difficulties: "The difficulties presented refer to the methods of secondary identification, establishment of priorities, orientation as to the need to effectuate notations on electronic strips, deficient emotional control, intonation of voice and limited agility in instructions." Sergeant Wellington, as could be perceived from his testimony, agreed with the terms of the report: "There were times when he made an evaluation in situations that were not very complex, and he would end up being approved, but when a little more was demanded, he was failed." The determination of evident difficulties lead the instructor to abandon the student: "Then, there came a point where I no longer wanted to evaluate him. I did not want to responsible in the future for a final evaluation of him, a final evaluation, and I said this to a Lieutenant and unfortunately it happened."
I interrogated Jomarcelo twice. The first time, he exercised the right to remain silent. The second time, he spoke. At least on the item of verbal expression, I can assure that the conclusion of the sergeant who testified in Brasilia is true. Jomarcelo has great difficulty with the spoken word. He has great difficulty in putting together a chain of reasoning. I confess that, concerned about understanding what in fact had happened, I would up offering him some alternative responses. Nothing. What I saw was a hesitant Jomarcelo, responding to a serious accusation, but without the minimum conditions necessary to articulate a justification. Without any presence of mind. On the item oral expression, therefore, I can say that I verified, as did the controller responsible for approval, serious problems. Even so, he managed to make an argument in his favor. He said that the problems are common, in such a manner that the controller no longer has that degree of caution that would be recommended. And, incredible though it may seen, this datum was confirmed by instructor Wellington, when he spoke of the banalization of safety procedures: "Radar breakdowns are very common. This is very common. Then, an anti-collision was activated. This was activated routinely, so much so that there was an audio alert for the controller, that was inhibited, because it went off so much". Instead of seeking to fix the defect, the alert was turned off!
I have it that it would not be an unmitigated absurdity - and the Tribunal, after all, will say if it is or not - to defend the thesis that there could have occurred a special case of indirect authorship [not sure of that translation] (which is not applicable in crimes without intent, I know, but the indirect author, in this case, in my understanding, acted with intent). Who is this indirect author: The person who conferred on Jomareclo the license for him to exercise the function of controller, when it was known that he had absolutely no condition at all to perform that activity. Or the person who ordered that he be approved. I don't know. This is a problem that the Prosecutors' Office will have to resolve. Immediate author of inducing the agent to err. They made Jomarcelo believe that he was a controller and he, certainly believing that he really was, sat down at the console and began to "work".
... The witness who testified in Brasilia did not direct to Lucivando the depreciating terms that he used when he spoke of Jomarcelo. In relation to him, therefore, one cannot - in respect to the proof in the case file - use the argument of intellectual shortcomings as an justification for absolution. [...] In relation to him, the system did not fail. And, so being, Lucivando should answer for negligence. [...]
Among the frequencies foreseen for Sector 7, controlled by the defendant Lucivando, only one (135.90) was programmed on the console. The Legacy aircraft attempted contact, at least, on frequencies 123.30, 133.05, and 135.90 - frequencies foreseen on the route chart and which, therefore, should have been programmed on the air traffic controller's console (fls 894, item 4.1.2). The same meaning is reached in the conclusions in the report elaborated by CENIPA (page 53 of the report).
The elements in the case file - reports elaborated by the National Criminalistic Institute and by CENIPA - prove, however, the absence of correct programming on the console. As the frequencies were not programmed, it was impossible for the air traffic controller to receive the calls made by the aircraft. None of the proofs and/or allegation in the case file (not even in that which in the Military Court inquiry) have sufficient consistency to justify Lucivando's negligent conduct, in such a manner that his condemnation is the measure that is imposed.
Finally, I would like to emphasize that the problem with communication failures does not have anything to do with the fact being examined now. The problem related to communications failures was already the object of examination in the decision which considered the preliminary defense. And it was taken into account so far that Lucivando was absolved of that specific conduct. What can be demanded of him is that he fulfill the minimum duty of selecting, on the console, the frequencies indicated for the sector. And this he did not do, as is very clear in the in the excerpt transcribed in the introductory part of this sentence (preliminary decisions) a clarification made supported by the proof provided by the Criminalistic Institute.