Acquittal upheld of controllers accused of negligence in crash
The Fifth Chamber of the Superior Tribunal of Justice (STJ) upheld the decision by the Regional Federal Tribunal for the 1st Region (TRF1) that acquitted two air traffic controllers accused of negligence in the crash of an Gol Linhas Aéreas airliner and a Legacy in September, 2006. The accident between aircraft killed 154 people.
Concurring with opinion author Minister Laurita Vaz, the chamber concluded that the appeal filed by the Federal Prosecutors' Office (MPF) sought a review of the evidence gathered in the trial, which is outside the jurisdiction of the STJ.
Based on this evidence - a decision that the Fifth Panel considered to be sufficiently justified - the Federal Court on the trial and first appellate levels had concluded that the controllers received incorrect information that the Legacy had maintained its flight level, when in fact, it was at the same level as the Gol plane, which was traveling in the opposite direction.
The Federal Prosecutors' Office (MPF) had returned an indictment to the judge of the Federal Court Single Judicial Subsection of Sinop (MT), arguing that four flight controllers and the two pilots of the Legacy, Americans, should be held accountable for the crime of attack on the safety of air transport.
The trial judge decided for the summary acquittal of two controllers, downgraded to unintentional the conduct of another and set aside some of the charges against the fourth controller, keeping him, however, as a defendant in the criminal case. For their part for the pilots were summarily acquitted of one charge, but continued to respond to the other counts in the indictment.
In the appellate judgment, the TRF1 reformed the judgment to reinstate all the original charges against the pilots, but rejected the MPF's request to reinstate the charges in the controllers' indictment.
The MPF filed a special appeal ("recurso especial") to have the decision reversed by the STJ in relation to two controllers: one who had been acquitted at the trial level, and another [NT:Lucivando, the case link shows] who had been only partially cleared.
According to the MPF, the latter had failed to attempt contact with the Legacy to communicate the failure of the transponder (equipment that sends signals to allow the identification and location of the plane), whose signal was not detected in the Brasilia Area Control Center, and both he and the other controller as well erred in failing to transmit to the Manaus Area Control Center information about the transponder and the problems in communicating with the aircraft.
The MPF claimed that the acquittal of both breached the Criminal Code, because if they, along with others, had acted with the care that the profession requires, the accident would have been avoided.
The TRF1 denied letting the appeal more upward, taking into consideration the STJ's Precedent 7, which prevents the re-examination of evidence in special appeals. Thus, the MPF appealed to the STJ itself (with an "agravo em recurso especial"), alleging that it was not asking for a re-examination, but for the legal revaluation of the evidence collected, because the facts, as they were outlined in the TRF1's decision, were said to show that the controllers acted with negligence in performing their jobs.
The controversy, for the MPF, was in defining whether the conducts investigated in the trial characterize negligence, or not.
In analyzing the issue, Minister Laurita Vaz emphasized that the procedural impediment raised by the regional court to deny the appeal was not free of doubt, especially given the complexity of the case. For this reason, ordered the conversion of the "agravo" into a "recuso especial" to better examine the case.
After carefully analyzing the trial court verdict and the TRF1judgment that sustained it in regards to the controllers, the opinion author concluded that the "recurso especial" proposed not only a revaluation of the evidence, but its profound reexamination, in order to reverse the findings of the ordinary court proceedings.
"As determined by the ordinary instances after full consideration of the evidence, the flight controllers, on taking their duty posts, received erroneous information that the Legacy was maintaining flight level 360 (36,000 feet), when, in fact, it proceeded at flight level 370 (37,000 feet), the same as the Gol aircraft, which was moving in the opposite direction on the same airway, "reported the minister.
Still quoting the findings of the ordinary instances, Laurita Vaz said: "The Manaus Area Control Center controller would have received the same misinformation and did not have data on the radar screen that would have suggested a need to adopt some measure to insure separation of these aircraft." Therefore, the minister said, the trial judge and the STF1 concluded that the conduct of the controllers was unimportant, eliminating the imputation of guilt by negligence.
"The factual framework outlined by ordinary instances seems to show a serious and undeniable failure of the Brasilia Area Control Center, when it authorized two aircraft to occupy the same flight level on the same route in opposite directions in upper airway, controlled airspace - that is, where all aircraft must strictly follow whatever the Control Center orders," said Laurita Vaz.
However, still based on the findings of the judge and the regional tribunal, she said that the accused controllers were not those who gave such authorizations. "They received misinformation from both the equipment and from their predecessors in the sector. Neither the radar screen nor the automated system negated such information. In this scenario, the conclusions of both the trial judge and the regional court are shown to be subsistent and reasoned, when they summarily acquittal these defendants", said the opinion author.
To review this conclusion, the minister added, would mean the inevitable re-examination of facts and evidence, which collides with the Precedent 7 - as the TRF1 understood, when it denied letting the special appeal proceed.