The role of Criminal Justice in dealing with past atrocities in the Spanish and Argentine transitions: common grounds, but different pathways

The comparative study of relevant Argentine and Spanish legislation and jurisprudence offers a perfect picture of the debate surrounding the role and limits of Criminal Law in transitional contexts. An analysis of these two experiences, and of the different choices they have taken, allows to point out three controversial aspects: firstly, the clash between legislative choices (often implying amnesties or similar measures) and judicial decisions that may somehow attempt to 'correct' the former. Secondly, the concerns raised by this creative judicial activity, in terms of its compatibility with the principles of legality and non-retroactivity and the prohibition of arbitrariness. Thirdly, the extent of the duty to prosecute and punish gross human rights violations vis-à-vis the limits of Criminal Justice. The article suggests reminding that, in extraordinary (transitional) contexts, Criminal Justice can and should be combined with other complementary mechanisms aimed at granting truth, justice, reparation and the building of a shared memory.