The rise in the use of “remotely piloted civil aircraft”, commonly known asDrones, to carry out aerial activities of technical or scientific work, during the day and in visual meteorological conditions, a specific legal regulation was necessary to regulate it.
On this matter of its own regulation we have already dedicated some space to it:
Royal Decree Law 8/2014, of July 4, approving urgent measures for growth, competitiveness and efficiency, and the subsequent law that validated it, Law 18/2014 of October 15, approving urgent measures for growth, competitiveness and efficiency make up the basic existing regulation in this matter.
These rules establish a series of requirements for their use, while a system of sanctions and administrative infractions is contemplated under the Law 21/2003 of July 7, on Air Safety.
As well, The increasing use of drones for various purposes has led to a parallel increase in the sanctions imposed by AESA (State Air Safety Agency), in the event of alleged breaches of the requirements set out in the regulations.
Are we exaggerating if we say that the sanctions imposed by AESA seemed “unquestionable”?
In principle, the sanctioning powers granted to AESA could be classified almost as “indisputable”. It is a specific matter and has a lot to do with one's own security (including national security), so it would seem difficult to question the legality of a sanction. Whoever instructs and sanctions drone operators is a body endowed, in principle, with the maximum prerogatives and means that makes it difficult to challenge their decisions.
From AESA it is They have initiated many disciplinary proceedings based on screenshots of flights. Most were even promotional flights on the operators' own websites, which entailed a risk of sanction despite the fact that, on occasions, the flights were not even attributable to the operator.
However, recently there has been knowledge of a Sentence that has annulled a sanction of 13,000 euros imposed on a Drone operator. The denounced infraction consisted of flying over crowds of people and night flights and not complying with the requirements to carry out aerial activities of audiovisual filming work. The court decision forcefully rejects the investigation of the file carried out by AESA, by denying evidentiary certainty to the viewing of videos and screenshots taken by an official. He also valued the refusal of evidence proposed by the sanctioned by the instructor.
How could AESA prove the infringement so that it is sanctioned in compliance with the law?
As stated in the Sentence issued by the Central Administrative Court No. 1, the viewing of videos and screenshots made by an official do not acquire evidentiary certainty. And those are usually the type of proof of charge that AESA uses to impose a sanction.
For the evidentiary certainty, the face-to-face visit of agents of the authority would be required or the inspection or act formalized in a public document if they acquire evidential certainty, or that the viewing of such videos and screenshots should at least be certified by an authorized official with certifying powers, and containing a series of data capable of providing it with that certainty (reference to the equipment used to perform the image captures, PC and software used for data processing, incorporating the technical certifications on its verification that prove that it is they were in perfect working order, dates of capture of the links and screenshots, content and preservation of the information, etc.).
In any case, when proposing the legal regulation of Drones, a “protective” motivation has always been sought. The impression was that the purpose of the regulation should be to respond to an activity that was implicitly considered dangerous. And hence the rigorous establishment of a series of requirements whose non-observance took the mallet out of the sanctioning power.
The need to provide precise instruments for the purpose of air safety cannot be denied. But the wide range of activities that are taking place with Drones deserves that the public powers take a step further (and in another direction), and exercise functions that are not only merely police.