Companies that have to manage high risks in Switzerland and that by necessity operate in error-sensitive areas are today confronted with incoherent state regulations The intended effect is in part mutually cancelled out. This legislative patchwork has been created without intention over the years. New technologies and processes have been introduced that needed to be regulated. New agencies were created whose activities had to be legislated. Businesses and organizations today must accept that laws that were tailored to a world from the early part of last century now make it difficult for them to maintain and evolve safety, in some cases significantly. Their application and associated procedures are causing nasty collateral damage to in-house safety cultures (just cultures). Addressing this legislative landscape is necessary if we are to keep pace with technological, scientific, social and cultural advancements.
Misappropriation of reports from the independent investigation body
When serious incidents or even accidents of aircraft, railroads and or ships occur, the Swiss Safety Investigation Authority (SUST) has the mandate to investigate them as an independent authority. The purpose of these investigations is not only to determine the immediate causes of such events, but also to uncover their underlying causes. The sole purpose of the investigations is to gain knowledge that can be used to prevent future accidents and dangerous situations. The results of the safety investigations must not serve to clarify questions of guilt and liability. For this reason, the preamble to each SUST report states that if the report were to be used for purposes other than accident prevention, due consideration should be given to this fact.
If there are investigations by the public prosecutor's office in connection with serious incidents or accidents, these are also based on the SUST reports. It is common practice that these are systematically read in order to determine whether there is an urgent suspicion of a crime and whether a criminal investigation is indicated. This procedure of the public prosecutor's office leads to a misappropriation of the SUST reports and, as we will see later, relativizes their validity.
We are dealing with a strange situation. The same state that tries to uncover the causes of incidents and accidents with a special authority, with the declared aim of improving safety, allows these very reports to be misappropriated by using them to clarify the question of guilt. All those involved in the incident and accident are aware of these facts. The incoherent behavior of the state puts them in a serious conflict of goals. They must assume that statements they make during the safety investigation will later be used against them in the criminal prosecution. The conflict of objectives is difficult because, the professionals and experts involved, have the greatest interest in ensuring that the investigation of the causes is successful and that safety can be improved. In view of a possible punishment, however, it is more than understandable if they choose to protect themselves in this conflict of objectives.
It is obvious that the current legal regulations must be reconsidered and adapted in order to put an end to this incoherent action by the state. Proposals for amendments to this effect are on the table in Bern. Parliament and the government are called upon to deal with them. The safety of the public will be grateful to them for doing so.
In aviation, the state imposes a reporting obligation on key personnel. Safety-relevant incidents of which they are aware must be reported to the supervisory authorities. In this way, the state aims to improve safety by allowing lessons to be learned from mistakes. Now there are cases in which incidents that became known as a result of such reports led to a criminal investigation and in which the reporting person was ultimately punished. In this example, the state is also acting inconsistently. Its regulations may force key individuals who are required to report to self-accuse. This is an untenable situation in a country governed by the rule of law. Moreover, the state does not know what is more important for it. The increase in safety, which it is trying to achieve with the reporting obligation, or the legally correct application of the criminal law, which it is trying to implement with the criminal investigation. Since he never gets into the situation of having to make this weighing of interests in a concrete case within the framework of the valid procedures and has also not commissioned anyone to make this weighing, it takes place unsystematically and erratically and is left to chance. It is thus not clear whether the state is at all interested in this weighing of interests. This raises the legitimate question of what passengers who represent the public here and who would be in the know about these circumstances would say.
The missing legal procedure
It is undisputedly sensible that serious incidents and accidents are investigated with a view to improving safety as well as legally clarifying the question of guilt. What is missing, however, and what the current legal regulations do not allow. A procedure that would make it possible at an early stage of the investigations to clarify in an interdisciplinary manner whether, in the case at hand, the assumption of responsibility and thus possible punishment or learning and thus improving safety is more meaningful for society. For such a clarification, the involvement of technical experts from both camps is of particular importance. These expert panels would be mandated by the state to ensure a balance between learning and punishment, between taking responsibility and safety.
It cannot be that we do not negotiate this decision, which is so important for society, in an interdisciplinary way. It cannot be that the proper handling of legal proceedings to resolve the question of guilt per se takes precedence over the public's concern for safety. Today, it is silently accepted and unreflectively assumed that clarifying the question of guilt will improve safety. Underlying this is a problematic mindset that assumes punishment will make frontline experts and workers act more safely. If we were still using this paradigm in schools in the twenty-first century, we would be talking about "black pedagogy." But today we have to live with prosecutors who defend this outdated paradigm in interviews as the morally justified basis for their actions. There they explain that front-line actors, aware that they can be punished for wrongdoing, are more attentive to their actions. According to them, the punishment not only increases attention and concentration, but it provides a sense of wrongdoing and sharpens the mind. Quoted thus verbatim. These statements are coupled with a belief that criminal proceedings have a preventive effect and it is believed that this positively affects safety.
It is difficult to comment on such statements. Ultimately, however, they can only be seen as a crude insinuation to experts whose top priority is to maintain public safety. They suggest that they are formulated from an understanding that does not take into account the circumstances in which work is done on the front lines. And that the complexity of today's systems, with their misalignments and inconsistencies, is not appreciated in any way. It is an expression of a narrowed lens that focuses exclusively on the individual. It is an outdated perspective that does not do justice to today's reality.
If we think that in today's world we can delegate our desire for safety to the front-line actors alone, we are wrong. We need an understanding that encompasses the interactions of people in complex systems. To that end, we need a legally mandated process for dealing with serious incidents and accidents that allows us to keep the individual and the system in mind in that very process. And we need coherent action by the state that prohibits the misappropriation of reports intended solely to improve safety and that abolishes undignified self-reporting.