Persona:
Maculan, Elena

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2020 - 20212
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Fecha de inicio: 2020 × Tipo: journal article ×

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Mostrando 1 - 2 de 2
  • Miniatura
    Publicación
    International Crimes or Ordinary Crimes? The ‘Dual Classification of the Facts’ as an Interpretive Method
    (Brill, 2021) Maculan, Elena
    Many domestic courts, when prosecuting atrocities committed in their dictatorial or warring past, have been facing a real dilemma: whether to classify the facts as ordinary crimes, foreseen by the domestic legislation prior to the facts and therefore consistent with the principles of legality and non-retroactivity, or as international crimes, which do not grant the same compatibility but allow to overcome the obstacles to prosecution imposed by statutory limitations and amnesties. The paper focuses on an interpretative method developed by several Latin American tribunals to overcome this impasse, by means of a combined application of the two criminal categories. Although this ‘dual classification of facts’ apparently solves the dilemma, it is flawed from both a methodological and substantive perspective. After scrutinising these problematic issues, the paper analyses some alternative interpretative proposals that may also allow to avoid impunity, but without impinging on fundamental principles of modern criminal law systems
  • Miniatura
    Publicación
    The Rationale and Purposes of Criminal Law and Punishment in Transitional Contexts
    (Oxford University Press, 2020) Maculan, Elena; Gil Gil, Alicia
    Recently, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice for dealing with collective violence has gained increasing traction. The article focuses on the purposes of criminal law and punishment, and what they can achieve in relation to victims and society in transitional contexts. As to victims, it proposes a reorientation of the victim-oriented theories of punishment towards consequentalism and the adoption of a wider concept of justice. As to society, it argues that in transitional contexts the main purpose is positive general prevention. Under both perspectives, the conclusion is that victims’ interests should be weighed up against other social aims and that a flexible approach to the prosecution and/or punishment of offenders should be permitted, in the search for the best optimum means possible to guarantee the ultimate aim of the maintenance of social order.