The pilot and co-pilot of an aircraft operated by a commercial carrier on an Austral Líneas Aéreas scheduled flight invited a VIP passenger into the cockpit for the duration of a flight. The first-instance court decided that the pilots and the passenger should be charged under Article 190 of the Criminal Code because their behaviour had violated safety regulations and posed a threat to the security of the aircraft, passengers and cargo, as well as third parties on the ground, even though no concrete harm had been caused.

Facts

A VIP passenger was invited into the cabin of an aircraft during a commercial flight. During the flight, the passenger took photos with her mobile phone and sent messages to third parties during take-off and landing. Video footage proved that the passenger had activated commands in the cockpit and that the co-pilot would have been unable to counteract any unexpected movements or reactions by the passenger.

The first-instance court determined that the pilot, co-pilot and passenger should be charged, as their behaviour had violated security norms and endangered the security of the flight, even though no actual harm had been caused.

Article 190 of the Criminal Code sets a penalty of imprisonment of between two to eight years for anyone who knowingly performs an action that could jeopardise the security of an aircraft, floating construction or boat.

The crew members and the passenger received a fine of $16,234 and a prosecution without imprisonment.

The defendants appealed the first-instance decision.

Decision

Chamber I of the Court of Appeals on Criminal Federal Matters agreed with the first-instance decision, stating that the criminal relevance of the accused's behaviour rested with their ability to generate a concrete risk to the flight's safety.

The passenger's phone recorded that she had interacted with the crew for the entire flight. Undoubtedly, her presence in the cabin was a major distraction for the crew and negatively influenced their judgement. This was not only due to the content of the conversations that the three defendants had during the flight, which had no connection with the flight's operational aspects, but also because of the intensity and timing of these conversations (ie, during landing and take-off, even when communications with air traffic control were taking place).

The fact that the passenger had access to the cabin, with the crew's permission, where she activated flight instruments at a sensitive time (eg, take-off) cannot be minimised and created an enhanced risk, prohibited under Argentine operative norms. Further, the court noted that in accordance with Austral's operations manual and Argentine civil aviation rules, the passenger's telephone had not been in flight mode. As a result, the court concluded that the defendants had knowingly posed a serious risk to the flight.

Consequently, the court decided that there was a good reason to believe that the behaviour of the crew and the passenger had constituted a serious risk to the flight even though no harm had been caused.

The court of appeals confirmed the penalties imposed by the first-instance court.

Comment

The decision sets a positive legal precedent, as the court held that even though no concrete harm had been caused, the actions had violated Article 190 of the Criminal Code because the three defendants knew or should have known the risk involved in their actions.

This is not the first case in which a VIP passenger has been invited into the cabin by the crew during a flight. What appears to be controversial is the fact that the defendants' actions were photographed and uploaded on the Internet. However, the court has taken a stand, perhaps to prevent similar behaviour in future.

For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991) or email (emf@emfrl.com.ar).

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.