الرقابة على الضمير القضائي ( دراسة مقارنة )

Oversight of Judicial Conscience ( A comparative study )

Criminal judgments are based on both assurance and certainty, not on the conjecture and speculation.” Certainty is a state of mind or rationality that confirms the existence of the truth. However, this implies monitoring the judge’s opinion. Conviction is a psychological tendency of a person. Still, it differs from just personal view based on their feelings and impressions. The conviction begins with factual premises that should be researched, scrutinized, and evaluated to derive logical conclusions. In other words, it is based on rational thinking to find a mental link between known and unknown facts. Despite that, conviction is not a purely automatic logical process based on certain premises that benefit certainty in a specific matter. Instead, it still has its own psychological and relative personal – who ultimately depends on when issuing his judgment on the conscience of its owner and what it contains personal motives and tendencies.
Due to the distinctive nature of the persuasive evidence system that dominates the criminal evidence. The restrictions of applying the principle of judicial conviction, including what would control its course to achieve its goal to discover the truth, are not sufficiently covered as its rigidly related to the judge’s conscience, and relativism as it differs from one judge to another at which point it could pose a significant threat to personal freedoms, especially in criminal incidents of great danger that lead to severe penalties such as death or imprisonment. Its clear evidence to start a discussion of the censorship of the Judges’ sentences issued out of conscience.
Conviction is an objective method in forming a personal opinion, so the control exercised over it must focus on the effect posed by the evidence on the conscience of the criminal judge, thereby presenting the case to another judicial committee. Such an approach investigates the degree of certainty achieved by the primary judges. Suppose the investigation outcome coincides with the conclusion of the preliminary judges indicating the unification of the effect that the evidence leaves on the conscience of more than one judge. At that time, the subjective and relativistic attributes, considered the source of danger in approving this system (persuasive evidence), are negated, which is called firm certainty, which must share by all judges, or at least the majority of them. To achieve such strong confidence, we need to adopt the principle of two-stage litigation within Iraqi legislation to ensure criminal justice in judicial rulings.