In recent weeks Max Mosley and the FIA have gone on the offensive against the European Commission applying the European Arrest Warrant ("EAW") mechanism to fatalities at race tracks. But is this just Max Mosley vs. the European Commission Round II? Or does the history of the Senna Trial in Italy suggest that official opposition to the EAW is well-founded given the far-ranging reach such a warrant has and the potential for prosecutorial abuse? Atlas F1's Thomas O'Keefe analyses the situation

Ayrton Senna has been gone now for as long as he was with us as a Formula One driver - ten years. But still he is with us at every single Grand Prix in the form of a tiny "S" insignia discreetly placed on each BMW-Williams Grand Prix car, somewhere on the front wing assembly, a small but poignant reminder of Senna's brief (60 completed laps in 3 races, with 3 pole positions) and ill-starred career as a Williams driver.

And although it has been nearly a decade since the tragic accident that took his life on Sunday, May 1, 1994 at Imola, controversy still surrounds the issue of who was responsible for the accident that day: was it metal fatigue resulting from a poorly-done weld to Senna's Williams FW16B steering column that gave way and led to Senna's going straight off the road at Tamburello? Was it a question of low tire pressure and cold tires on a restart, often a scenario in racing that leads to accidents? Was Senna pushing too hard to establish a lead and simply went into Tamburello too hot, a corner that has caught many out over the years, possibly because he ran over debris or bottomed out on a bump in the track that sent the Williams oversteering off into the gravel at 190 mph and into an unforgiving cement wall at Tamburello which claimed the great Brazilian's life?

On one point everyone seems to be in agreement: that whatever caused the Williams to go off the track, the immediate cause of death was not the accident itself - however it came about - but the fact that some part of the right front triangular-shaped suspension assembly of the Williams that was sheared off in the crash acted like a dagger upon impact and penetrated first Senna's trademark yellow helmet and then the frontal lobe of Senna's brain, entering just below the green stripe on the helmet, killing him right then and there for all practical purposes although he was on life support in Bologna's Maggiore Hospital until later on that afternoon.

When the race was all over the winner was Michael Schumacher in his Benetton-Ford B194, who was directly behind Senna when the accident happened and who has, of course, now followed in Senna's footsteps in more ways than one, breaking all of Senna's significant records except Senna's record of 65 pole positions, which Schumacher will probably eclipse before he hangs up his helmet. But Michael knew that winning the 1994 San Marino Grand Prix came at too high a price: "What has happened is so dramatic and so bad that I feel no satisfaction in winning." In the end, though, that victory at Imola would turn out to be critical to Schumacher's first World Drivers' Championship, which he won by only one point over Senna's Williams teammate, Damon Hill.

Interestingly, as we come up on the 10th Anniversary of Senna's death at Imola, the Autodromo Enzo e Dino Ferrari racetrack itself is in jeopardy as a Formula One venue, and the aggressive nature of Italian prosecutor's vis-à-vis fatal racing accidents in Italy that manifested itself in the Senna trial is again a subject of concern to Formula One Constructors due to the introduction throughout the European Union (the "EU") countries of a European Arrest Warrant (the "EAW"), that will be implemented before the commencement of the European Formula One season at Imola on April 25, 2004.

The gist of the EAW initiative is to abolish existing extradition procedures which the European Commission (the "EC"), the policy implementing arm of the EU, regards as tinged with politics. The EC is in this instance acting as a supranational organization with the power to impose binding law on member states of the EU. Under the new regimen, EU citizens shall be responsible for their actions before EU courts, and it will not be possible anymore for a member state to refuse to surrender one of its citizens who has committed a crime in another EU state on the ground that he or she is a national.

The threshold for subjecting a European to an EAW is very low. An EAW may be issued by a national court if the person whose return is sought is accused of an offense for which the penalty is at least one year in prison. According to the EC, the purpose of the EAW "is to replace lengthy extradition procedures with a new and efficient way of bringing back suspected criminals who have absconded abroad . . . The execution of these warrants is simply a judicial process under the supervision of the national judicial authority."

Why does the EAW make the FIA and the teams, particularly the English teams, nervous? Because in countries where it is in effect (and by April 2004, Italy is likely to be one of them), the usual extradition procedures that guarantee due process and protect team personnel from being arrested and extradited from their home country (typically Oxfordshire, England in the case of most Formula One teams) would be eliminated, permitting, say, an Italian Court to order arrests of team personnel and extradition in future cases of fatal accidents on racetracks like Monza and Imola, two venues where there has been much death involving British cars and drivers during the Italian races.

Jim Clark's accident in 1961 at Monza when his Lotus 21 came up on the Sharknose Ferrari 156 driven by Wolfgang von Trips, leading to the death of von Trips and many spectators, was the first such episode and Colin Chapman quickly ushered the quiet Scot out of Italy before the tifosi could call for his head. In 1970 Lotus again was involved, when Jochen Rindt's Lotus 72 crashed during practice for the Italian Grand Prix at Monza when his car had a mechanical failure, with Rindt dying of his injuries subsequently in the hospital. The deaths of Roland Ratzenberger and Senna on that tragic weekend in 1994 are the most recent examples of the interpretation local officials place upon their mandate under Italian law to investigate driver fatalities on the racetrack.

But although the Formula One community was always wary of the Italian investigative apparatus, the aftermath of Senna's death at Imola in 1994 sent shockwaves through Formula One that are still keenly felt ten years later. Although ultimately acquitted, Frank Williams, Patrick Head and Adrian Newey - not an axe murderer amongst them - were charged by a Bologna prosecutor named Maurizio Passarini with a grisly-sounding charge: manslaughter. As defendants, Newey and Head exercised their right not to testify against themselves at the Senna Trial; Frank Williams did testify.

Damon Hill and David Coulthard were also drawn into the Senna Trial, Hill not being able to add much to the issue of Senna's modified steering column (both Williams cars had the diameters of their steering columns reduced in the middle of the steering column to improve clearance and the visibility of dashboard) but testifying that he thought from looking at the films of the accident that the car oversteered off the track. Another film, this one of David Coulthard in the cockpit of a 1994 Williams, was also proffered in evidence by the Williams defense team showing that the flexing of a Williams steering column was not abnormal or unusual, both pieces of evidence tending to support the conclusion that mechanical failure of the Williams did not cause Senna to go off at Tamburello. The official Williams defense was that the steering column broke after and not before the crash.

In the course of Passarini's inquiry, it was suggested that Formula One Management was also somehow at fault because the in-car footage being taken from Senna's car cuts off before the car leaves the road, presumably robbing Passarini and the rest of us of the opportunity to see Senna grappling with a broken steering column at 190 mph in that last 1.4 seconds of his life. What would we have seen?

Mauro Forghieri, the legendary and plain spoken ex-technical director of Ferrari made no bones about it when he testified at the Senna Trial, peering as it were, into Senna's mind in the closing moments of his life: "I believe that Ayrton Senna turned his steering wheel firmly to the left shortly before the crash. If he had not done so he would have crashed immediately . . . Senna would have realized the steering on his Williams-Renault was functioning abnormally and after twice easing off the accelerator, he began to brake . . . Senna realized that if he had tried to steer the wheel in a way to spin it around, the steering would have snapped."

The late Michele Alboreto, who was with Minardi in 1994 and out of Formula One by the time of his testimony at the Senna Trial and thus with no particular bias in the matter, was also called as an expert witness, and he was confident upon seeing the video that was available, both from inside and outside the cockpit, that "you don't off on that bend [Tamburello] unless there is a mechanical failure." As the dignified and fair-minded former Ferrari driver said after his testimony: "Senna deserves the recognition that he was not to blame for his own death. I don't want to see anyone go to prison, but his memory must be protected."

One driver, Senna's 1993 teammate at McLaren, Michael Andretti, was not called as a witness but had no question as to the cause of the accident knowing Senna as he did: "This was not a driver error. There was no weakness in his driving." Keke Rosberg, another educated armchair observer and the 1982 World Drivers' Champion driving the Williams FW08 held the same view: "[Tamburello] was never a place where a driver, let alone Ayrton Senna, would go off because of a mistake."

With the Senna Trial as background, it is not surprising that the FIA is strongly committed to cutting off the legs of the EAW before it causes another trial and media circus involving Formula One, not necessarily involving only racetrack fatalities but even business matters such as commercial espionage allegations which have been known to emerge from time to time. With the amount of swapping going on currently amongst drivers, designers, technical directors and plain boffins in Formula One, a commercial piracy case is at least as likely to occur as arrest and extradition for manslaughter.

Whatever the prospects for abuse of an EAW, the FIA wants nothing to do with it, and thus Max Mosley finds himself taking up the cudgels against his old adversary, the EC, the principal policy-making body of the EU that is still licking its wounds from coming off second best to Formula One in the anti-trust case loudly brought against the FIA and Formula One Management in 1999, but quietly settled in the Summer of 2001 with virtually no substantive action taken against the sport.

In the antitrust case it was the EC's Competition Directorate that was bloodied; this time Mosley is sparring with the EC's Commissioner for Justice and Home Affairs, and in his usual modest way Mosley has already called for the EC's public relations representative to be disciplined for erroneously claiming that the FIA did not complain early enough about the EAW. Since Mosley received an apology from the EC and the payment of the FIA's lawyers' costs for the EC staff leaking investigative information in the antitrust case, you can be sure the EC takes notice when the ex-barrister takes aim at an initiative like the EAW.

But is Mosley just challenging the EC reflexively, or is the threat of an abusive use of the EAW real? Amazingly, the FIA's fears are not theoretical and its threats are not idle to boycott countries as venues for Grands Prix whose governments do not agree to provide a legally enforceable undertaking not to use the EAW mechanism against team personnel following any incidents on the track. Again, the Senna Trial provides a troubling precedent. For although the Williams defendants and track officials were acquitted of manslaughter and other charges by trial judge Antonio Constanzo in 1998 for an accident that occurred in 1994, the prosecution had an automatic right of appeal from the verdict and those appeal rights were exercised.

In addition, it should be remembered that although the individual Williams defendants were exonerated as to their culpability, the written decision of Judge Constanzo dated June 15, 1998, had accepted the basic premise of prosecutor Passarini's case, concluding that the reason for Ayrton Senna's crash was the breaking of the modified steering column; without that condition, Judge Constanzo concluded, the Williams would not have left the track at Tamburello.

And as of January 27, 2003, the appeal process continues to be prolonged by the announcement that Bologna's current Deputy Attorney General, Rinaldo Rossini, had petitioned the Italian Supreme Court to re-open the Senna case because of errors made in the original case heard before Judge Constanzo. So ten years out, it is at least technically possible for the Italian judicial bureaucracy to re-launch the Senna Trial, and the EAW would be a vehicle to strike fear into the heart of all those current and former Williams employees who found themselves charged last time around. It is conceivable that Sam Michaels could end up being Number One Man at Williams when the San Marino Grand Prix is held on April 25, 2004, if the other top Williams managers stay home along with Adrian Newey, now of McLaren-Mercedes, to avoid subpoenas and service of process!

A partial solution to the discomfort to Formula One presented by the EAW is that laws in Italy that require investigations of the nature unleashed in the case of Ayrton Senna's death could be looked at for purposes of making them presumptively inapplicable to fatalities suffered in the course of sporting events, including motor races, unless there is sufficient evidence of malicious or intentional misconduct to rebut the presumption that the fatality occurred because of accidental circumstances. As Italian Flavio Briatore said in the context of the Senna Trial: "I ... would not risk bringing my team to a country that can convict you of an accident ... Fatality is part of the game." And more recently, as Max Mosley's letter press release on the EAW dated January 21, 2004, put it: "No F1 team considers itself above the law but they will not race where they do not feel safe."

Another ironic current reminder of the Senna Trial is that the then-Public Prosecutor, Maurizio Passarini, has been promoted and is now Judge Passarini. Guess what he is up to these days? He is judging the celebrated blood doping/drug enhancement allegations in the case of sports physician Michele Ferrari, charged with administering dangerous substances to several top bicycle racers. The Michele Ferrari trial resumes in Bologna on April 20, 2004, the Tuesday before the 2004 San Marino Grand Prix.

Having invested so much of his career in attempting to unravel what happened at Imola ten years ago, one suspects that, as an admitted Italian motor racing fan himself, Judge Passarini will be listening to testimony about Michele Ferrari and bicycle racing during the day that week but checking the La Gazzetta dello Sport at night for whatever the other Ferrari, Schumacher's Ferrari, is up to at Imola. Passarini will be sharing the sports spotlight with Senna again on a weekend when there will likely be two eulogies: one for Senna ten years on from the accident (see Missing Senna for a CD that honors Senna that is already available and approved by the Senna Foundation), and another eulogy for Imola as a Formula One venue if Bernie Ecclestone's predictions turn out to be true and Imola is dropped from the calendar after this year.

As for Senna himself and his memory, visible signs of Senna's death at Imola have all but disappeared. The blood-impregnated green and yellow helmet that did not protect him against the Williams front wishbone was returned to Senna's family and it was destroyed on their orders. On March 14, 2002; the shattered remains of the fatal Williams FW16B chassis that did not protect him from the Tamburello wall were returned from the Bologna Police Station (where the chassis was stored during the trial) to Williams Grand Prix Engineering at Grove in England, where the 10 year-old carcass of the Williams chassis is thought to be kept under lock and key.

Senna himself is memorialized in a sensitively executed statue adjacent to the Imola track, located just across from the now re-configured Tamburello curve where it all ended; see Backstage at Imola for what you will see if you go to the Senna sculpture at Imola. Flowers and messages are still left there on race weekend by Senna's many fans that make the pilgrimage out to his statue. Senna's countrymen gave him a State Funeral in Sao Paulo - his coffin draped with his beloved Brazilian flag and his yellow helmet placed on top of the coffin - and he is buried in the Morumbi cemetery in his hometown of Sao Paulo.

The only consistently visible sign left to us is the little "S" on the walrus tusk nose of the BMW-Williams FW26, a nice touch that will doubtless remain well beyond the EAW controversy, the Senna Trial appeals, verdicts and reportage on all such issues, and indeed for as long as Williams Grand Prix cars run. As Frank Williams summed it up in an interview with Brad Spurgeon of the International Herald Tribune in August 2000, sweeping away all the theories, legalities and technicalities as to culpability for the tragedy at Tamburello: "Ayrton Senna died in a Williams car. And whatever the reasons were, that is something that weighs very heavily on our shoulders." Leave it to Sir Frank to cut through it all so forthrightly; need anything else be said?

Author's Note: www.ayrton-senna.com, The Senna Files, was relied upon as the source for English translation of testimony given at the Senna Trial. The video of Senna's accident commissioned by the Bologna Public Prosecutor is at http://www.Cineca.it/HPSystems/Vis.I.T/Researches/Senna/index.html

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