Chapter 2 - Transitional Justice and the Spanish Case

Summary

THEORETICAL BACKGROUND: MODELS OF TRANSITIONAL JUSTICE

In recent years a heated debate about transitional justice has emerged at the transnational level. This phenomenon has been reflected in numerous publications, which have mainly been in English, but also in Spanish. The latter have appeared in some Latin American countries, but also, more recently, in Spain. This is a clearly transdisciplinary field which has attracted contributions from specialists in political science, sociology, philosophy and public international law. Specialists in criminal law have been less drawn to this area, despite the challenges that the issues involved present from the perspective of theories of punishment and the points of contact that exist with international criminal law and restorative justice.

Historically speaking, demands for justice in transitional contexts have traditionally been linked to the application of criminal justice against those responsible for violations of human rights that occurred under previous political regimes. If we focus on the best-known experiences from the contemporary era, we find that the regimes in question tended to emerge from an armed conflict or a revolutionary transition, and to adopt exceptional measures to repress those who were judged to have committed unlawful acts under the outgoing regime. A culture of punitive emergency and even the abrogation of the basic principles of criminal law and due process were the dominant attitudes of the new rulers once they had become entrenched in power. Lustration, special courts, the use of untrained judges, violations of the principle of legality and the prohibition of the retroactive application of criminal law have all been components of a model of transitional justice in which the concept of “political justice” has prevailed over the rule of law. Examples of this transitional model were common in the European transitions that took place immediately after the Second World War and were also seen more recently in the Portuguese revolution of 1974 and in post-Soviet political transformations of the 1990s. In these cases, we frequently find degenerate forms of justice, such as “revolutionary justice” or “victors’ justice”.