Facts

Two pilots X and Y met in Switzerland where X gave a presentation on flying seaplanes in Canada. Y was an experienced pilot with more than 13,500 flight hours, but he was unfamiliar with seaplanes. Since X purported to be able to provide flight training to obtain a Canadian seaplane endorsement, Y decided to travel to Canada to learn from X how to fly a seaplane. X and Y agreed on C$100 per flight hour, including fuel and instructor. Both X and Y were Swiss nationals.

On September 23 2007 X and Y made several training flights in a Rans S-7S Courier ultra-light seaplane around Crouse Lake in Nova Scotia.

On September 25 2007 X and Y continued their flight training in the same aircraft. They planned to take off from Crouse Lake, fly a circuit and land back on the lake. Shortly after take-off, while turning onto the downwind leg, the aircraft suddenly descended and struck the ground.

Y was killed, X survived with injuries.

In the aftermath of the accident, the prosecutor of the canton of Bern brought criminal charges against X. The prosecutor claimed that X committed the crimes of death by criminal negligence and fraud under Articles 117 and 146 of the Criminal Code of Switzerland. The Canadian authorities brought no criminal charges.

Bern Oberland District Court and Bern Appellate Court found X guilty as charged. He was sentenced to a custodial sentence of two years and a monetary penalty. Y's widow was awarded compensatory damages and damages for her pain and suffering.

Supreme Court

On February 25 2016 the Supreme Court dismissed X's petition to set aside the Bern Appellate Court judgment.(1)

Since the territoriality principle is the primary basis for jurisdiction in criminal law matters, the court first dealt with the issue of jurisdiction of the Swiss authorities. While the accident did not take place in the territory of Switzerland, Swiss law provides for criminal law jurisdiction based on the nationalities of the offender and the victim. Both X and Y were Swiss citizens.

In addition to the nationality requirement, double criminality was required to assert Swiss jurisdiction (ie, the offence must also be punishable in the state in which it was committed). Since Section 220 of the Criminal Code of Canada penalises the act of causing death by criminal negligence in a similar fashion as Article 117 Criminal Code of Switzerland, the court found that jurisdiction of the Swiss authorities was established. The court also decided that the provisions of the Criminal Code of Switzerland applied.

The court then turned to the causes of the accident, but as a matter or procedural law the court could review only whether the Bern Appellate Court had established the facts in a manifestly wrong way. That was not the case in the Supreme Court's opinion.

Consequently, the Supreme Court made its judgment based on facts established by the Bern Appellate Court. On the accident flight, the Rans S-7S Courier seaplane's engine had a sudden loss of power, which resulted in an aerodynamic stall and loss of control at low altitude. Since the engine showed no signs of a pre-existing defect, it was concluded that one of the two pilots had inadvertently moved the throttle lever into the idle position, possibly while retracting the flaps (there was not much space in the cockpit and the flaps lever was located under the seats).

The Bern Appellate Court also found that X had pretended to be a properly trained flight instructor, while in fact he was not.

X denied that he acted as Y's flight instructor (who was an experienced pilot), but in the Supreme Court proceedings he failed to show that the Bern Appellate Court's finding was manifestly wrong.

The Supreme Court then turned to Article 117, which provides that any person who causes the death of another through negligence or recklessness is liable to a custodial sentence not exceeding three years or to a monetary penalty. X denied that he caused Y's death through negligence or recklessness, but he was unable to convince the Supreme Court.

The court based its decision on two hypotheses. It was either X or Y who inadvertently pulled the throttle lever into the idle position, which then directly resulted in the aircraft's crash and Y's death. In the court's opinion, had X pulled the throttle, X's own act would have led to Y's death. X acted recklessly or negligently in that event, because he should have known that the Rans S-7S Courier aircraft quickly loses power when the throttle lever is idle. A reasonably skilled and prudent pilot would have ensured that no loss of power occurred. At least a reasonably skilled pilot would immediately have spotted the problem and pushed the lever to the fully open position again. X failed to do so.

If, on the other hand, Y moved the throttle lever, then in it was relevant that X assumed the responsibilities of a flight instructor although he was not properly trained to do so. According to the court, a properly trained flight instructor would have known that the Rans S-7S Courier aircraft poses the risk that a student pilot could inadvertently move the throttle into the idle position while retracting the flaps. A properly trained flight instructor would have taken appropriate precautions by informing and supervising the student. In the court's opinion, a properly trained instructor would also have reacted immediately and pushed the throttle lever back into the fully open position in the event of an inadvertent power loss. X failed to do so.

On that basis, the court held that under both hypotheses (ie, regardless of who moved the throttle) X caused Y's death through negligence or recklessness within the meaning of Article 117.

In addition, the court found that X was guilty of fraud according to Article 146, because he falsely pretended to be a flight instructor and induced Y to travel to Canada, thereby causing financial damage.

Comment

The judgment is a reminder that, despite widespread criticism against the criminalisation of aircraft accidents, aviation is far from immune from criminal prosecutions.

Unfortunately, the judgment is not entirely persuasive. The chain of events that lead to Y's death remain unclear. If one of the pilots inadvertently pulled the throttle lever into the idle position, that alone explains little. Idling the engine does not inevitably result in the loss of control and a crash, even if the aircraft is at low altitude, but the judgment does not determine what exactly happened in that critical phase of the flight and how the pilots reacted. The judgment is also speculative in that it assumes that the accident would not have happened had a properly trained flight instructor been in the cockpit.

For further information on this topic please contact Andreas Fankhauser at Baumgartner Mächler by telephone (+41 44 215 4477) or email (afa@bmlaw.ch). The Baumgartner Mächler website can be accessed at www.bmlaw.ch.

Endnotes

(1) Case 6B_1341/2015.

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