IFALPA outraged over recommendation to prosecute business jet crew before technical investigation finished

The pilots of the Embraer Legacy involved in last September's fatal mid-air collision with a Gol Boeing 737-800 could face up to five years in prison, after an investigation by Brazil's federal police found them responsible for the accident.

The police's report into the accident, in which all 154 people on board the 737 died, has been submitted to members of a congressional panel investigating Brazil's air transport system. It was due to be forwarded last week to the country's ministry of justice, which has 15 days to decide whether to approve the findings, although this could be extended.

Headed by federal commissioner Renato Sayao, the federal police's criminal inquiry was launched the day following the 29 September accident over the Amazon.

Running in parallel with the investigation effort by Brazil's aircraft accident investigation board Cenipa - reportedly months away from being concluded - the report was finalised shortly after Sayao requested a deadline extension.

In its report, the police recommend that the Legacy's flightcrew, Joseph Lepore and Jan Paladino, be charged with infringing article 261 of Brazil's penal code - which cites "placing vessel or aircraft in jeopardy" as a criminal offence.

Gol 737 
© ANAC    

The 737 crashed after striking the Legacy's left winglet and tailplane

According to sources, the police investigation established that the aircraft's transponder was working perfectly and that it was "involuntarily" switched off by one of the crew members and then turned back on after the collision.

While there was concern that both pilots were at risk of being further charged with manslaughter, the report makes clear that there were no grounds for indicting either pilot on that count. But should the federal prosecutor's office accept the report's conclusions and recommendations, the offence could entail a two- to five-year prison sentence.

The report acknowledges that air traffic controller performance was flawed. Yet, claiming that an in-depth investigation of military personnel is outside its jurisdiction, the federal police recommends that Brazil's defence ministry and air force pursue their own investigations into the episode.

The International Federation of Air Line Pilots' Associations says it is "outraged" by the Brazilian police's recommendation to prosecute the Legacy pilots prior to the completion of the accident investigation. It has called on the Brazilian justice ministry to "comply with the guidance of ICAO Annex 13 concerning post-accident prosecution and to correct the premature action of the Polícia Federal by waiting until the findings of the technical investigation are reported by Cenipa".

Theodomiro Dias, lead ExcelAire counsel in Brazil, indicates the federal prosecutor's office will judge and act upon the report's merits, which can range from shelving to opening indictment procedures. "From day one the [federal police's] investigation has been hampered by media and public pressure," says Dias.

Source: Flight International