Some proof problems poses by retroactive justice

Abstract

The objective of this article is to identify the main evidentiary problems that arise in retroactive justice processes and subject them to critical reflection. These problems are the proof value given to investigative work and the collection of evidence by extrajudicial truth commissions; the problems of admissibility of the evidence collected by said commissions; and the proposals for proof flexibility that basically have to do with the incorporation of context evidence, reversal of the burden of proof and decrease the standard of proof. To carry out this work, the Trial of the Argentine Military Juntas for the violations of human rights committed during the military dictatorship from 1976 to 1983 is taken as an empirical basis. The method used is argumentative, thus, once the proof problem was identified, questions were formulated, possible answers or solutions and new questions until you reach an answer. These answers roughly are: The investigative work of the extrajudicial truth commissions has been fundamental to discover and understand the events that occurred in the years of dictatorship or armed conflict. The discussion about the convenience of admitting the evidence obtained by truth commissions must be subjected to in-depth analysis and the answer will depend on each case. The context evidence does not serve to fill evidentiary gaps, its function is to contribute to the interpretation of the facts of the case. The reversal of the burden of proof as a strategy of evidentiary flexibility implies contradicting the principle of presumption of innocence as well as the proposal to decrease the standard of proof.