Disruptive Passengers: The Impact of Peru’s New Aviation Regulation on Administrative Offences and Sanctions.
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ritten by Camila Aquije Quiroga & Patricia Siles for Díaz Palao & Siles Law Firm – Peru.
The typification of the disruptive passenger constitutes one of the most significant challenges for the effective safeguarding of aviation security and public order within the scope of air operations developed in Peru.
However, with the recent promulgation of Ministerial Resolution N° 435-2024-MTC/01.02, which approves the new Regulation of Aeronautical Offences and Sanctions, a regulatory amendment of particular significance has been introduced. This modification consists in redefining the figure of the disruptive passenger in more restrictive terms, limiting it exclusively to acts committed on board aircraft and excluding from its scope of application any disruptive behavior occurring in terminals, boarding areas, or any other airport facilities, which had indeed been included by the previous regulation enacted by Ministerial Resolution N° 361-2011-MTC/02.
In this regard, Article 5 of the aforementioned Ministerial Resolution stipulates that a disruptive or insubordinate passenger is any individual who fails to comply with the rules of conduct on board an aircraft or disregards the authority of the crew members and, consequently, disrupts the order and discipline of the air transport unit. In line with this, Article 11.4 of the Civil Aviation Security Law, enacted by Law N° 28404, provides that airlines are authorized to deny boarding to such passengers and to prohibit their subsequent air transport.
As may be observed, this regulatory change generates new security concerns for airlines, given that any comparable conduct occurring in airport facilities will no longer be classified as an infringement under this specific regime, thereby transferring the sanctioning jurisdiction to other legal frameworks. This scenario compels air operators and the competent authorities to distinguish between sanctioning regimes based on the location where the conduct materializes, thereby increasing the risk of creating interpretative grey areas and potential protection gaps in respect of situations that entail the same objective severity.
Another critical issue is that, at present, the regulatory framework governing disruptive passengers does not provide air carriers with standardized procedures for responding to disruptive events, nor comprehensive management protocols for such incidents. These tools would help to clearly define what evidence must be collected, how incidents should be documented, and the procedural steps required for the adoption of sanctioning measures. This omission is significant, given that the management of disruptive passengers has been delegated to the exclusive sphere of responsibility of airlines, without the Directorate General of Civil Aviation of Peru (hereinafter, the DGAC) issuing binding guidelines capable of ensuring a homogeneous and foreseeable standard of response.
In this regard, it should be emphasized that, pursuant to Article 108.107 of the Peruvian Aeronautical Regulation known as “RAP N° 108,” approved by Directorial Resolution No. 0172-2023-MTC/12, each air operator is obliged to incorporate into its Aviation Security Program (PSEA) specific procedures for managing such events. These procedures must at a minimum include elements such as the determination of the severity of the incident, protocols for crew coordination, and preventive measures aimed at safeguarding the integrity of the aircraft and its occupants, while leaving to the operator’s discretion the development of more detailed criteria of application. This regulatory framework clearly demonstrates that the DGAC shifts to airlines the burden of designing, implementing, and executing their own internal procedures for the assessment, management, and reporting of such incidents, without providing them with a legal provision establishing with precision the graduation of conduct and the proportionality of applicable measures.
Likewise, in practice, this situation generates an environment of operational uncertainty, since there is no administrative jurisprudence or judicial precedents that clearly delineate the criteria of reasonableness and proportionality applicable to air transport bans imposed by airlines after the occurrence of incidents involving disruptive passengers, in accordance with Article 11.4 of the Civil Aviation Security Law. This absence of consolidated interpretative precedents significantly increases the exposure of air operators to potential claims or challenges and ultimately undermines the deterrent and preventive effectiveness that the sanctioning system is intended to guarantee.
It should be noted that the national regulatory framework is underpinned by international commitments assumed by the Peruvian State through the ratification of international instruments, such as the 1963 Tokyo Convention, which recognizes the jurisdiction of the State of registration over offences and acts committed on board aircraft, the 1970 Hague Convention on the Suppression of Unlawful Seizure of Aircraft, and the 1971 Montreal Convention on the Suppression of Unlawful Acts Against the Safety of Civil Aviation. Nevertheless, it is evident that despite the existence of this international regulatory framework, effective enforcement mechanisms have not been successfully deployed, as evidenced by the lack of timely investigations and exemplary sanctions in numerous cases reported at Peruvian airports.
In this context, the reduction of the objective scope of the infringement exclusively to acts committed in flight constitutes a setback in the preventive and deterrent capacity of the sanctioning system with respect to dangerous behavior occurring within airport facilities, which may equally jeopardize operational safety. For this reason, it is proposed that a unified national protocol be developed for managing disruptive passengers, which establishes objective criteria for classifying incidents, procedures for action, guidelines for the evidentiary documentation process, and mechanisms for inter-institutional coordination among the DGAC, the National Police, and the Public Prosecutor’s Office.
Additionally, it is considered appropriate to create a single nationwide register of passengers sanctioned for disruptive behavior, whether in flight or on the ground, accessible to all air operators, in order to facilitate the identification of repeat offenders and mitigate operational risks.
In conclusion, the implementation of Ministerial Resolution N° 435-2024-MTC/01.02 reveals significant limitations that, if not addressed, could undermine the effectiveness of the Peruvian aeronautical sanctioning regime by restricting the definition of the disruptive passenger solely to acts committed on board the aircraft. This regulatory narrowing creates considerable operational and legal challenges by excluding from the sanctioning framework the disruptive behavior occurring in airport facilities, thereby weakening the preventive and deterrent capability of the system. Considering this new regulation, it is essential that the aeronautical authority promptly adopt complementary measures, such as the development of a unified national protocol capable of standardizing procedures to respond proportionately and efficiently to each incident, as well as the creation of a centralized register of sanctioned passengers to ensure the traceability of airlines’ actions. It is important to highlight that through an integrated approach and detailed regulation, it will be possible to consolidate an effective regime that guarantees operational safety and preserves the legitimate interests of all stakeholders involved in the provision of air transport services.
Likewise, airlines in Peru should consider bringing criminal and civil proceedings against this kind of disruptive passengers, many of them vandals who cause serious economic damages to the airlines, such as the case of a passenger who hit a cabin crew member in the face and caused him to have to stay at the stopover point of the flight with medical rest, which resulted in 20 passengers having to leave the aircraft, since the technical conditions required by the aeronautical regulations for the return of the flight with complete Cabin Crew members were not complied with. Consequently, these passengers filed complaints against the airline for breach of the air transportation contract before the Consumer Defense Agency, INDECOPI, and payment of compensation that should be assumed by the party that caused the damage.