Sobre los nuevos paradigmas de la justicia penalla justicia universal, la justicia restaurativa y la justicia transicional

Resum

The juridical recognition of the victims initiates a new trend in the Penal Justice, from the punishment to the culprits to the recognition of the victims to obtain justice and repair, in the International area the protection of the rights of the victims is contained in the new paradigms of the International Criminal Justice: the Universal Justice, the Restorative Justice and the Transitional Justice. With this new route, the fight against the impunity for crimes against the humanity and the international community, allows also, the reestablishment of the social bonds that are brokeen by the conflict and the serious violations of the human rights. The rights of the victims constitute the content of the Restorative Justice, which begins with the recognition of an effective resource, the right to a worthy treatment and the right to the information, the right to the protection and the right to the assistance, up to reaching the right to the reparation. These rights are recognized in the principal universal and regional juridical instruments, and their protection is ensured by the organs of supervision of the agreements and of the courts and regional commissions. Nevertheless, without the binding force of the resolutions of these organisms and with the difficulty of the procedures, their efficiency and the guarantee they offer to the victims is limited. The Universal Justice allows to the authorities of any State to investigate and to judge the alleged author of crimes against humanity, even if such acts have no particular connection with the State. This principle of universal jurisdiction encloses also now the victims and recognizes their access to the justice and the right to the repair. Nevertheless, the recognition of the rights of the victims in the Statute of Rome of 1998 and the practice of the Court, has not foressen the existence of a right favoring the victims to initiate the penal action, but only the right to present observations or opinions. The Transational Justice takes as content all those actions that a society must do to realize a order and justice. A unique model of Justice does not exist, but the different models are designed considering the experiences of the concrete country reconciliation commissions, amnesty laws, judicial processes, agreements of justice, and plans of repair for the victims. In this respect Argentina or Colombia adopts different models of transitional justice fitting the different types of violence and repression exercised in these countries, which raises the question of the new legal frame and the obligation of the fulfillment of the international penal legality.