The role of Criminal Justice in dealing with past atrocities in the Spanish and Argentine transitions: common grounds, but different pathways
In: International journal of human rights, S. 1-22
ISSN: 1744-053X
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In: International journal of human rights, S. 1-22
ISSN: 1744-053X
In: Nordic journal of international law, Band 84, Heft 3, S. 456-481
ISSN: 1571-8107
This article analyses how the ad hoc International Criminal Tribunals have implemented European Court of Human Rights case law with regard to the definition of torture as a paradigm of the phenomenon of cross-fertilisation. Reliance on European jurisprudence has fostered a twofold evolution in the concept of torture. This may be described, on the one hand, in terms of overcoming the fragmented normative framework towards harmonisation of the definition of the offence. On the other hand, it has also caused a significant and somewhat problematic broadening of its scope. In addition, the case study offers some insights as to the method applied by Courts in the selection and interpretation of external sources, as well as to some possible misuses of these references. The judicial interpretation of torture provides therefore some relevant suggestions that could both enhance the potentialities of cross-fertilisation and overcome its dangers.
In: Nordic journal of international law: Acta Scandinavica juris gentium, Band 84, Heft 3, S. 456
ISSN: 0029-151X, 0902-7351
Truth-finding trials (juicios por la verdad) constitute a novel solution devised by the Argentine judicial system to cope with crimes committed by the past military dictatorship. This mechanism uses criminal courts as well as criminal procedure in order to investigate the truth about the dictatorship's crimes; however, the trials allow judges neither to establish criminal responsibility nor to punish the perpetrators of crimes. This limitation is due to the inability, imposed by the Full Stop and Due Obedience Laws, to prosecute the perpetrators of crimes.From the perspective of criminal law, truth-finding trials present two problematic features: firstly, their creation and regulation are set by judges, which has caused the development of many non-homogeneous local solutions and, secondly, their hybrid nature, which entails a possible subversion of conventional forms and goals in the context of the criminal trial.The paper also describes the current situation, since the Argentine impunity laws were declared unconstitutional and criminal proceedings reopened. The new framework provokes questions about the relationship between the reopened criminal trials and the truth-finding investigations, not only with regard to evidentiary issues but also with respect to the reason why the truth-finding investigations are still held.Finally, the shift from a non-punitive approach to the current full criminal accountability seems to suggest that truth-finding trials were merely a temporary solution, while the notion of the full prosecution and punishment of State crimes was never really set aside.
BASE
Truth-finding trials (juicios por la verdad) constitute a novel solution devised by the Argentine judicial system to cope with crimes committed by the past military dictatorship. This mechanism uses criminal courts as well as criminal procedure in order to investigate the truth about the dictatorship's crimes; however, the trials allow judges neither to establish criminal responsibility nor to punish the perpetrators of crimes. This limitation is due to the inability, imposed by the Full Stop and Due Obedience Laws, to prosecute the perpetrators of crimes.From the perspective of criminal law, truth-finding trials present two problematic features: firstly, their creation and regulation are set by judges, which has caused the development of many non-homogeneous local solutions and, secondly, their hybrid nature, which entails a possible subversion of conventional forms and goals in the context of the criminal trial.The paper also describes the current situation, since the Argentine impunity laws were declared unconstitutional and criminal proceedings reopened. The new framework provokes questions about the relationship between the reopened criminal trials and the truth-finding investigations, not only with regard to evidentiary issues but also with respect to the reason why the truth-finding investigations are still held.Finally, the shift from a non-punitive approach to the current full criminal accountability seems to suggest that truth-finding trials were merely a temporary solution, while the notion of the full prosecution and punishment of State crimes was never really set aside.
BASE
In: Utrecht Law Review, Band 8, Heft 1, S. 106-121
SSRN
In: Derecho penal y criminología
In: Quaderni di diritto penale comparato, internazionale ed europeo
In: Diritto penale internazionale 5
In: Colección investigación