Abstract: The document aims to formulate a critique from the point of view of the theory of the substitution of the Constitution in transitional contexts, to Judgment C-674 of 2017, where the Colombian Constitutional Court, based on the replacement of the guarantee of natural judge as an element of the right to due process, established that third parties who participated in international crimes during the armed conflict could not be prosecuted and judged by the Special Court for Peace.
Keywords: Third parties in the armed conflict, transitional justice, substitution of the Constitution, constitutional reform, constitutional principles, natural judge, special jurisdiction for peace.
The reprivatization of property taken away during communism is one of the instruments of restoring order in the countries of Central and Eastern Europe transitioning from the totalitarian system to democracy. However, it often interferes with the constitutional rights and freedoms of others. Therefore, it requires rational justification that would legitimize the burden accompanying this process and ensure trust in legal institutions. This problem is of interest to both international organizations that set certain standards of reprivatization and national judiciary. In the paper, this issue will be discussed with particular regard to the achievements of the UN (especially the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence) and selected judgments of the ECHR.
This study investigates the approach adopted by Tunisian policymakers after the 2011 revolution regarding transitional justice (TJ). It uses the justice-balance approach, suggested by Olsen, Payne, & Reiter (2010) to be the most effective approach to reduce human rights violations and boost democracy, as a benchmark model both on the de jure and de facto levels. After explaining this benchmark and building the Tunisian TJ index, I find a significant gap between the constitutional texts produced to govern TJ after the revolution and the policies generated to apply them. However, both of them are mostly compatible with the justice-balance approach, as they both adopt a mix of trials and amnesty tools, combined with truth-revealing mechanisms. Still, nearly all the adopted mechanisms, except for national consultations, suffered either from a partial or non-transparent application. This approach raises concerns around the de jure/de facto constitutional gap in Tunisia after the revolution.