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On October 29, 2018, the world was again shaken with a very heartbreaking incident. Lion Air JT 610, which was scheduled to arrive at Pangkal Pinang at 7:20 am, lost contact shortly after taking off from Soekarno Hatta Airport, Tangerang. The plane carrying 181 passengers (178 adults and 3 children) as well as 6 cabin crew and 2 pilots crashed in the Tanjung Pakis area in Karawang waters. The accident killed all passengers and cabin crews. The National Transportation Safety Committee (“KNKT”) immediately moved to the crash point to evacuate the victims of the aircraft and also to search for aircraft black boxes to investigate the cause of the crash. This incident caused much confusion within the public concerning the cause of the crash. The question often to ask is, was this accident caused by pilot error? Or is there a defect in 737 MAX aircraft made by Boeing? As a result of the crash, it is understandable that the heirs feel a lot of losses. Some heirs also intend to file for a compensation lawsuit against the airline and also Boeing as the aircraft manufacturer for the disaster. In order to file a lawsuit, the heirs requested the investigation results from the KNKT to be opened in court so that the facts related to the crash of the Lion Air JT 610 were clear and transparent.

KNKT has released its final investigative report on the Lion Air JT 610 accident last October. However, many legal observers, especially in aviation law, stated that the results of the Lion Air JT 610 accident investigation could not be used as evidence in court. Regarding this matter, the following is a legal explanation related to the results of the KNKT investigation which cannot be used as evidence in court.

Article 359 of Law Number 1 of 2009 concerning Aviation (“Aviation Law”) expressly explains that the results of an investigation cannot be used as evidence in the judicial process. The results of investigations that can be announced to the public are only the results of investigations that are general and do not contain any confidential elements. In the explanation of Article 359, what is meant by ‘confidential information’ is:

  1. statements from people obtained during the investigation process;
  2. records or transcripts of communications between people involved in aircraft operations;
  3. information about health or personal information from people involved in accidents;
  4. sound recordings in the wheelhouse (cockpit voice recorder) and word-for-word notes (transcripts) of the sound recordings;
  5. recordings and transcripts of air traffic service talks; and
  6. opinions expressed in the analysis of information including flight information recorders.

Furthermore, what is meant by Investigation in Article 359 of the Aviation Law is an investigation conducted by the Government, which in this case was carried out through an independent national committee, regarding the cause of any accidents and serious incidents of civil aircraft occurring in the territory of the Republic of Indonesia (Article 357 paragraphs (1) and (2) of the Aviation Law).

So, what can the heirs of the plane crash victims who want to hold the airline to account by filing a lawsuit do if the KNKT investigation results cannot be presented at the trial? The following is the explanation.

The evidentiary system of civil law recognizes a principle known as “whoever claims, he must prove.” This principle is also reflected in the provisions of the Civil Code (Civil Code) in Article 1865, which states:

“Everyone who claims to have a right or designates an event to confirm his right or to deny someone else’s rights is obliged to prove the existence of that right or the stated event.”

This is also regulated in Article 163 of Herziene Inlandsch Regelment – HIR, which states:

“Whoever, who says he has a right, or he mentioned an act to strengthen his rights, or to deny the rights of others, that person must prove the existence of that right or the existence of the incident.”

So, to hold a party or defendant accountable, the party who filed the claim (the Plaintiff) must also prove that clear and transparent. Therefore, it is necessary to pay attention to the provisions regarding violations, whether the violation is a violation of the provisions of the law and legislation (unlawful act) or the violation is a violation of an agreement (breach of contract).

Related to unlawful act, the Plaintiff is obliged to prove the fulfillment of the provisions of Article 1365 of the Civil Code, which states:

“Every act that violates the law and brings harm to others obliges the person who caused the loss due to his mistake to replace the loss.”

In practice, based on the provisions of Article 1365 of the Civil Code, there are elements known to be unlawful, which include:

  • There is an act;
  • The act is against the law;
  • An error;
  • There are losses;
  • Causality relationship between actions and losses.

To demand accountability from a party, the plaintiff is obliged to prove the five elements. As explained previously, to hold a party accountable, other than through unlawful acts, there are also acts of breach of contract. In the case of a breach of contract, what needs to be proven by the Plaintiff needs to prove that there is the violation Committed by the defendant that can make the defendant accountable based on the provisions of a legally binding agreement between them.

Regardless of whether the defendant is acting in violation of the law or breach of contract, the Plaintiff is still obliged to prove that there is an element of the offense or breach of the act. To be able to prove that element, the Plaintiff needs evidence.

Evidence set forth in the provisions of article 164 HIR is as follows:

  • Written evidence;
  • Witness;
  • Allegations;
  • Recognition;
  • Oath.

Therefore, it can be concluded that if the Plaintiff submits a lawsuit against a party, in this case, as a result of an aircraft accident, the Plaintiff must not only postulate that the Plaintiff has incurred a consequence of an act from the party deemed responsible. Instead, the Plaintiff must also provide evidence that shows or supports the proposition in the form as determined in Article 164 HIR above.

The results of the investigation carried out by the KNKT as referred to in Article 357 of the Aviation Law, of course, contain findings as well as information and facts related to an aircraft accident. Investigation results in the form of a report can be categorized as written evidence if it is available in written form. However, due to its confidential nature and protected by the Aviation Law, the results of the report cannot be used as evidence for the judicial process (Article 359 paragraph (1) of the Aviation Law). Furthermore, Article 359 paragraph (2) of the Aviation Law stipulates that some non-confidential information can be published/announced to the public. Therefore, information from the results of investigations cannot be used as evidence in the judicial process except information that is not confidential. Considering that the Plaintiff cannot use the results of the KNKT investigation, the Plaintiff must seek information or other facts to support their claim to the party deemed responsible.

Carrier Liability

Apart from the generally accepted legal mechanism regarding filing a civil lawsuit, the Aviation Law regulates the liability of airlines in the event of an accident against a passenger in civil aviation. This can be seen in Articles 141-149 of the Aviation Law. Article 141 paragraph (1) of the Aviation Law states:

“The carrier is responsible for the loss of passengers who die, permanent disability, or injuries caused by air transport in and on and off the aircraft”

The elucidation of that article states:

“What is meant by “air transportation incident” is an event that is solely related to air transportation.

What is meant by “permanent disability” is the loss or non-functioning of a limb or that affects normal activities such as loss of hands, feet or eyes, including in the sense of permanent disability is mental disability as regulated in the legislation in the business sector of insurance.”

Thus, it can be concluded that in the event of an air transport incident that results in losses for the passenger, the passenger and/or legal heirs of the passenger may claim damages to the airline (carrier). The form of airline responsibility is regulated in the Minister of Transportation Regulation No. 77 of 2011 concerning Responsibilities of Air Transport Carriers (PM 77). In PM 77 it is explained that in the event of death, the carrier in this case the airline is required to provide compensation to the heirs of Rp.1,250,000,000.00 (one billion two hundred and fifty million Rupiah). These obligations are explained in Article 3 PM 77 which can be quoted as follows:

“The amount of compensation for passengers who die, permanent disability or injuries as referred to in Article 2 letter a is determined as follows:

a. passengers who die on an airplane due to an airplane accident or an incident solely related to air transportation are compensated in the amount of Rp.1,250,000,000.00 (one billion two hundred fifty million Rupiah) each passenger;

b. passengers who have died as a result of an incident solely related to air transportation during the process of leaving the airport waiting room to the aircraft or when the process of getting off the aircraft to the arrival hall at the destination airport and / or transit airport ) provided compensation of Rp.500,000,000.00 (five hundred million Rupiah) each passenger; “

In practice, the airline that suffered an accident provided compensation of Rp.1,250,000,000.00 (one billion two hundred and fifty million Rupiah) to the legal heirs and asked the legal heirs who received the compensation to sign the Letter of Release and Discharge.

Based on the news we got on November 1, 2019, only about 75 heirs received compensation from Lion Air. Based on the news, Lion Air provided additional compensation of Rp.50,000,000.00 (fifty million Rupiah) so the heirs receive Rp.1,300,000,000.00 (one billion three hundred million Rupiah). Furthermore, still from the same news, the form of responsibility from Boeing is to provide compensation funds totaling USD 50 million, where each legal heir receives compensation of USD 114,500[1].

Lion Air explained in the news that although there is a Release and Discharge that must be signed by the heirs, the Release and Discharge has no binding obligations, and is not related to other claims. This is in line with Article 23 of PM 77 which explains that although heirs have received compensation in accordance with Article 3, this does not necessarily limit the opportunity for heirs to file a lawsuit in court. Article 23 PM 77 states:

“The amount of compensation set forth in this regulation does not limit the opportunity for passengers, heirs, cargo recipients, or third parties to sue the transporter to a district court within the territory of the Republic of Indonesia or through arbitration or other alternative dispute resolution in accordance with the provisions of the legislation”

Based on the explanation above, it can be concluded that the airline’s liability for the loss of passengers caused by an air transport incident must be carried out by, and given to, without having hapus to wait for the results of a national KNKT investigation. Furthermore, the form of liability provided by the airline has been regulated in PM 77 and although the heirs have received compensation, this does not close the opportunity for them to submit legal remedies in either the court or other available dispute resolution media.

Furthermore article 28f of the 1945 Constitution states that “every person has the right to communicate and obtain information to develop his personal and social environment, the right to seek, obtain, possess, store, manage and convey information using all types of channels which are available. However, article 359 of the Aviation Law number 1 of 2009 states that it is prohibited to obtain information on the results of investigations. Hence, how should this contradiction be addressed?  The following is the explanation.

In the context of Human Rights, there is a principle known as Non-Derogable Rights and Derogable Rights. Non-Derogable Rights are human rights that cannot be reduced under any circumstances. While Derogable Rights are human rights that can still be reduced or restricted in certain circumstances.

In legal instruments, Human Rights, which are included in Non-Derogable Rights, can be seen in the provisions below:

The 1945 Constitution of the Republic of Indonesia (1945 Constitution), Article 28 paragraph (1), which states:

“The right to life, the right not to be tortured, the right to freedom of thought and conscience, the right to religion, the right not to be enslaved, the right to be recognized as individuals before the law, and the right not to be prosecuted on the basis of a retroactive law are human rights that are retroactive cannot be reduced under any circumstances. “

Law Number 39 of 1999 concerning Human Rights (Human Rights Law), Article 4, which states:

“The right to life, the right not to be tortured, the right to personal freedom, mind and conscience, the right to religion, the right not to be enslaved, the right to be recognized as individuals and equality before the law, and the right not to be prosecuted on the basis of a retroactive law are rights human rights that cannot be reduced under any circumstances and by anyone.”

Elucidation of Article 4 of Human Right Law:

“What is meant by” under any circumstances “includes a state of war, a dispute of weapons, and / or an emergency.”

“What is meant by” anyone “is a State, Government and or community members.”

“The right not to be prosecuted on the basis of retroactive laws can be excluded in the case of gross violations of human rights that are classified as crimes against humanity.”

Based on the provisions above, we can see that there are certain rights that cannot be reduced under any circumstances and by anyone. These rights are known as Non-Derogable Rights. Therefore, by interpreting the law argumentum a contrario, it can be interpreted that rights other than those contained in article 28 paragraphs (1) of the 1945 Constitution and Article 4 of the Human Rights Law are Derogable Rights, can still be reduced and or limited in certain circumstances. Thus, it can be explained that the rights stipulated in Article 28f of the 1945 Constitution are included in the Derogable Rights and therefore their fulfillment can still be reduced or limited in certain circumstances. In our opinion, the provisions of Article 359 of the Aviation Law can be interpreted as a form of reduction or limitation of the rights stipulated in Article 28f of the 1945 Constitution.

CONCLUSION

Based on the explanation above, it can be concluded that the final results of the KNKT investigation cannot be used as evidence in the judicial process because the Aviation Law is very clear and expressly regulates it. Indonesian civil procedural law adheres to the principle of those who claim must prove (Article 163 HIR). Moreover, in a civil case, the judge is passive, and there are no rules regarding the right of the judge to order that a party or parties outside the dispute to open and or submit documents owned or held by each of these parties. Therefore, if there are legal heirs who want to file a lawsuit against the airline, they must look for facts and other evidence in order to strengthen the arguments that will later be submitted in the lawsuit. In addition, it is also necessary to present legal experts who are not only fluent in procedural law, but also in the field of aviation law and understanding the aviation industry.

Furthermore, based on our research from the media, Boeing as the aircraft manufacturer has admitted its mistake in making 737 MAX aircraft used in Lion Air JT 610 flights. Accidents also occurred on 737 MAX aircraft on Ethiopian Airlines which also causing casualties. Regarding Human Rights, in our opinion, Article 359 of the Aviation Law is not a violation of Human Rights on the grounds and reasons as we have stated above.

Hope it’s useful,

FREDRIK J. PINAKUNARY LAW OFFICES


[1] This article posted on Kompas.com with title “Baru 75 Ahli Waris Korban JT 610 yang Terima Ganti Rugi, Ini Kata Lion Air”https://money.kompas.com/read/2019/11/01/183518226/baru-75-ahli-waris-korban-jt-610-yang-terima-ganti-rugi-ini-kata-lion-air.


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