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By Roger Rapoport

PARIS - After six turbulent years the Air France 447 criminal investigation has moved to a new "mass disaster" court division with a long name, Pôle Santé Publique et Accidents Collectifs du Tribunal de Grande Instance de Paris"        

Two well qualified judges, Nicolas Aubertin and Emmanuelle Robinson, may order further investigation of the Airbus 330 crash.  Alternatively they could rule that a detailed 700 page technical report filed with Investigative Magistrate Sophie Zimmerman in 2012 is sufficient to recommend manslaughter prosecution of Airbus and/or Air France.      

The new investigative judges could also rule that there are insufficient charges to prosecute the case in a French criminal court.

Parties to the case, including families of the 228 victims, Airbus, Air France and the pilots' union, SNPL, are all expected to file new motions shortly in the mass disaster court.
The original 2012 technical investigation report on the June 1, 2009 Airbus 330 crash was based on thousands of pages of documents and interviews in Europe, Africa and South America. It paralleled a thorough French government Bureau d'Enquêtes et d'Analyses Pour la Sécurité de l'Aviation Civile (BEA) analysis. 

The 2012 BEA report attributed the worst crash in Air France history to multiple causes including incorrect flight director indications, loss of angle of attack protection and display to pilots, lack of training on how to handle abnormal air speed indication, absence of any visual information to confirm approach to stall after the loss of limit speeds, erroneous airspeed messages from the electronic centralized aircraft monitor (ECAM) and an obsolete high altitude stall recovery procedure.

Some recommendations based on the BEA's analysis have been implemented.   Many others, such as airline adoption of standby Angle of Attack indicators found on most military aircraft around the world, have languished.

After the first investigation by court appointed experts, Airbus sought a rebuttal called a "Contre-Expertise" with a new team of experts including just one French aviator. Lawyers representing Air France and the Association of Families of Victims of Flight 447 wanted to appoint another expert of their choosing from a court approved list.

Their request was rejected by investigative magistrate Zimmerman. She ruled that adding one more expert would slow down the "urgent" case and lead to further delays triggered by translating proceedings into all languages spoken by victims' families residing in 32 countries from China to Brazil.  

After the technical experts filed their "Contre-Expertise" highly favorable to Airbus in 2014, the Family Association and Air France moved to overturn it.  They argued that exclusion of airline and family chosen experts from a special Airbus 330 check ride attempting to simulate Flight 447 violated French criminal code.

The plaintiffs argued that their experts were entitled to ride along on the plane with the "Contre-Expertise" team.  In addition the Family Association sought additional technical investigations on unanswered questions about the Airbus's performance after certain anti-stall protections were lost.

This request and a motion to dismiss the "Contre-Expertise" was turned down in early 2015 by Zimmerman's successor, Investigative Magistrate Sabine Kheris.  Air France and the Family Association, which includes members currently suing the airline for damages, appealed.

The 42 page appellate court decision released last week overruled Kheris's order on the "Contre-Expertise."  The new decision held that Judge Zimmerman violated the right of Air France and the Family Association to include an expert of their choosing. 

In addition to nullifying the "Contre-Expertise," the ruling struck from court records all evidence, testimony and exhibits gathered from the date of the overruled order. All this research is inadmissible in further proceedings. Airbus lawyers, highly critical of this decision, have said they may appeal.  The Family Association applauded the decision.

"We are pleased that the court has annulled the 'Contre-Expertise" because it "did not comply with legal requirements," said Danièle Lamy president of Entraide et Solidarité AF447.  "The families expect a fair trial that establishes responsibility and sanctions the perpetrators without delay."    

The Family Association is expected to ask the new judges to close the investigation, arguing that the original 700 page technical report adequately covers the matter.  If Robinson and Aubertin agree, they could move the case to a trial court

Airbus can also move for a new "Contre-Expertise" in the mass disaster court.   Lawyers for the Family Association would oppose this action.

If a move for a new "Contre-Expertise" is rejected, Airbus could appeal.  If their attorneys prevail, a new team of experts might include investigators selected by opposing parties. As one of the attorneys representing victim's families explains:

"Given the appellate court's decision, the Family Association and Air France would be expected to select their own experts from a court approved list to join the "Contre-Expertise" team. That means we would become a party to this investigation with all the rights enjoyed by Airbus.  We'd also be able to include an expert of our choosing on any check rides or test flights. In addition we could potentially challenge the manufacturer on every point."

       

Anticipating this possibility, the family association's technical expert, former Airbus 320 captain and union leader Gerard Arnoux, has already prepared a five page list of new questions for the mass disaster court and future experts. Some of these key issues have not been previously explored by the BEA or previous court investigators.

       

It's possible that all of these new issues could become part of a second "Contre-Expertise".  This would open the door to new testimony, exhibits and research. Portions of this review would challenge Airbus's position that technical difficulties outlined by the BEA report did not contribute to the crash.

       

"If a new 'Contre-Expertise' goes forward", explains the plantiff's attorney, "we will have the opportunity to includeour expert,, submit new facts, request additional research and ask any questions we want.  None of this happened on the first rejected 'Contre-Expertise.'  Only Airbus was a party to that investigation."

       

Should judges Robinson and Aubertin reject a new "Contre-Expertise" and order the case to trial, Airbus would not have the right of appeal.  If the judges move to dismiss the entire case, the Family Association can appeal.

Roger Rapoport, who writes regularly for Flight Safety Information, is the author of a book on Air France 447 and the producer of the feature film, Pilot Error.  https://vimeo.com/110034584


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