Swiss Air Force crash: air traffic controller appeals his conviction

 According to news media reports, an air traffic controller of Skyguide[i] appealed his conviction for negligent homicide[ii] to a military court of appeal. He was found guilty on January 9^th by a military court for causing a military aircraft to crash, which caused the death of a pilot in training[iii]. The air traffic controller was sentenced to a conditional fine of 60 “daily rates” of 170 Swiss francs[iv]. A co-accused, the lead pilot who was training his younger trainee, was acquitted. The military auditor (prosecutor) is waiting for the written judgment to be released before deciding whether or not to appeal that acquittal[v].

The following is a summary of various Swiss news media articles.

A Tragic Event

On August 29, 2016, at 16h01 local time, in the canton of Bern, two F/A-18 Hornets take off from Meringen Air Base with a 15 second interval[vi]. An instructor is in the first aircraft while a 27-year-old pilot is in the second. They both participate in a training exercise – an air combat with a Tiger F-5[vii]. As visibility conditions are poor due to cloud cover, the two pilots are flying by instrument (or IFR). The second pilot tries to lock his radar on to his leader’s aircraft, to follow him but it does not work[viii]. He then contacts the air traffic controller who mistakenly instructs a 10,000 feet minimum altitude to him while the requirement was 15,000 feet[ix]. 58 seconds later, the F/A-18 crashes into the western flank of the Hinter-Tierberg mountain (Susten Pass region) - 11 meters below its ridge - killing instantly the young pilot and destroying completely his aircraft, including the black box[x]. Shortly after, when talking to the emergency center, the air traffic controller realizes his error. He tries to correct it by contacting his colleague based in Dübendorf (canton of Zurich) – who has just taken over - but it is already too late[xi].

Military Justice Proceedings

In an April 2020 interim report, Swiss military justice authorities indicated that the accident was due to two causes[xii]. First, the air traffic controller probably indicated too low an altitude to the pilot. In addition, the leader did not fully comply with the standard practices during take-off[xiii]. Eventually, on March 31, 2023, a military prosecutor charged both with negligent homicide, negligent disregard of service regulations, negligent obstruction of public traffic, and negligent misuse and waste of equipment[xiv].

Trial before the military tribunal, presided by Lieutenant-Colonel Markus Hofer, begins on January 4, 2024, in Muttenz (canton of Basel-Country)[xv]. The air traffic controller admitted he made a mistake, a “slip of the tongue” he supposed[xvi]. He added that as radar echoes of both aircrafts were touching, he “instinctively” issued them separate flight instructions, which had prevented a collision, according to him[xvii]. Defence counsel argued that every pilot must know that you cannot fly over a mountain at 10,000 feet, as a general rule. Ultimately, is for the pilot to avoid collision and not for air traffic control, he added[xviii].

Contrary to the air traffic controller, the lead pilot denied making any mistake. He notably stated his speed was not below prescribed directives for take-off procedures[xix]. Although he heard when the other plane radar stalled twice, he added he could not intervene, since he was not remotely controlling his trainee[xx]. Defence counsel argued that the lead pilot followed his flight profile and did not seriously deviate from it[xxi]. In response, the military prosecutor submitted that if the lead pilot had strictly followed rules during take-off, the younger pilot would not have contacted the air traffic controller to receive instructions[xxii].

In addition to a guilty finding for each individual, the military prosecutor asked the court to impose suspended sentences of one year for the air traffic controller and nine months for the lead pilot[xxiii].

After the military court found the air traffic controller guilty, it discontinued the remaining proceedings on other charges[xxiv].

Background Information on Swiss Military Justice System

The Swiss military justice system is based on a Military Criminal Code[xxv] (MCC) which complements the civilian Criminal Code[xxvi] and follows a Federal Military Criminal Procedure Code[xxvii]. The Swiss military tribunal system is composed of eight tribunals of first instance (three in French, four in German, and one in Italian), three military courts of appeal (one in each language) and a Military Supreme Court[xxviii] at same level of its civilian counterpart. Military courts are composed of a president and judges which form a panel. While the president is a colonel or lieutenant-colonel, judges may be officers, non-commissioned officers (NCOs) or even soldiers[xxix]. Judges are appointed for a four year term in addition to their normal military duties[xxx]. During the main proceedings, president and judges may question the accused person on the facts and on his or her personal background, based on the principle of immediacy[xxxi].

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[i] An agency which manages civil and military air traffic control in Switzerland: www.skyguide.ch.

[ii] RTS, “Swiss air traffic controller appeals military crash conviction”, SWI swissinfo.ch, January 19, 2024, <https://www.swissinfo.ch/eng/swiss-air-traffic-controller-appeals-military-crash-conviction/49141314>.

[iii] Keystone-SDA, “Air traffic controller blamed for fatal military crash”, SWI swissinfo.ch, January 9, 2024, <https://www.swissinfo.ch/eng/air-traffic-controller-blamed-for-fatal-military-crash/49112604>.

[iv] About 195 USD.

[v] Supra, note 2.

[vi] “Les débris du F/A-18 disparu au col du Susten ont été retrouvés “, RTS, August 30, 2016, <https://www.rts.ch/info/suisse/7977396-les-debris-du-fa18-disparu-au-col-du-susten-ont-ete-retrouves.html>.

[vii] Id.

[viii] Keystone-SDA/jc, “Two charged with negligent homicide in 2016 air force plane crash”, SWI swissinfo.ch, March 31, 2023, <https://www.swissinfo.ch/eng/two-charged-with-negligent-homicide-in-2016-air-force-plane-crash/48408068>.

[ix] RTS, “Swiss military jet crash: public prosecutor seeks suspended prison sentences”, SWI swissinfo.ch, January 6, 2024, <https://www.swissinfo.ch/eng/business/swiss-military-jet-crash--public-prosecutor-seeks-suspended-prison-sentences/49100956>.

[x] Id.; supra, note 8.

[xi] “Dans le procès du crash mortel de F/A-18, le procureur requiert des peines de prison avec sursis”, Le Temps, January 5, 2024, <https://www.letemps.ch/suisse/dans-le-proces-du-crash-mortel-de-f-a-18-le-procureur-requiert-des-peines-de-prison-avec-sursis>.

[xii] Supra, note 8.

[xiii] Id.

[xiv] Id.

[xv] Boris Busslinger, “Un crash mortel de F/A-18 devant la justice militaire”, Le Temps, January 4, 2024, <https://www.letemps.ch/suisse/suisse-alemanique/le-proces-d-un-crash-mortel-de-f-a-18-devant-la-justice-militaire>.

[xvi] Supra, notes 9 and 11.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv] Supra, note 3.

[xxv] 321.0 Militärstrafgesetz vom 13. Juni 1927 (MStG) / 321.0 Code pénal militaire du 13 juin 1927 (CPM) / 321.0 Codice penale militare del 13 giugno 1927 (CPM).

[xxvi] Switzerland, Office of the Armed Forces Attorney General, “ History of the Military Justice “, <https://www.oa.admin.ch/en/die-militaerjustiz/die-geschichte-der-schweizer-militaerjustiz.html>.

[xxvii] Switzerland, Office of the Armed Forces Attorney General, “ Military criminal procedure “, <https://www.oa.admin.ch/en/militaerstrafverfahren/das-militaerstrafverfahren.html>.

[xxviii] Switzerland, Office of the Armed Forces Attorney General, “ Military tribunal system “, <https://www.oa.admin.ch/en/organisation/die-organisation-der-militaerjustiz.html>; Organisational chart of the military tribunal system : <https://www.oa.admin.ch/content/oa-internet/en/organisation/die-organisation-der-militaerjustiz/_jcr_content/contentPar/downloadlist/downloadItems/336_1459262917603.download/Organisation%20of%20the%20military%20tribunal%20system.pdf>.

[xxix] Switzerland, Office of the Armed Forces Attorney General, “ Main tasks of the members of the military tribunal system “, <https://www.oa.admin.ch/en/die-militaerjustiz/hauptaufgaben-der-angehoerigen-der-schweizer-militaerjustiz.html>.

[xxx] Id.

[xxxi] Id. According to that principle, all evidence is presented in court to the judge in its most original form, and not through other witnesses such as police officers’ depositions, so that judgment is based only on evidence directly heard during trial. For example, see Marc S. Groenhuijsen and Hatice Selçuk, “The Principle of Immediacy in Dutch Criminal Procedure in the Perspective of European Human Rights Law”, (2014), Zeitschrift für die Gesamte Strafrechtswissenschaft, 126(1), 248-276, <https://doi.org/10.1515/zstw-2014-0014>.