Law is the common point of the world. Although the details of the bound results vary, it is often clear whether most acts are unlawful. Though differently defined and its scope narrowed or expanded, there is a “crime” reflex in society’s view of human actions. Social reaction reflects and shapes the legal system in which it is located. In this way, different and similar rules of law are derived from the unique but similar characteristics of societies.
In the characteristic formation of law, the meaning that nations attribute to abstract and traditional concepts such as historical background, geographical features and “morality” is particularly influential. Morality, compassion and empathy form the voice of conscience; in society’s view of human actions there is a “punishment” reflex as well as a “crime” reflex. Law comes before conscience at the point of what an act alone and at the social level means and what it should mean, but the rules of law that determine what the limits will be at the point of reaching material reality may be insufficient. In this case, the necessity of the existence and definition of the conscience of the judge as a requirement of justice arises.
In private law and criminal law, judges are independent in their duties and judge according to their personal convictions in accordance with the Constitution and the law. However, the personal conviction of the judge is regulated by drawing different boundaries in the two branches of law. That is to say, this limit is based mainly on “suspicion based on reason” in Criminal Procedure Law and “weighted evidence” in private law. In private law, the principle of “preparation by the parties” applies, as opposed to the ex officio investigative authority of the judge in Criminal Procedure. The contents of this principle include the cases put forward by the parties and the evidence under the responsibility of the parties. As a result of this, when it is decided that a claim will be proved in private law, weighted criteria of evidence are mentioned. If the evidence prepared by one party to prove its claim is more “credible” than the other party’s evidence, the judge may rule in favor of the evidence which he considers to be weighted from the evidence in his possession, as he cannot collect the official evidence. If the judge determines whether this decision is fair or not, without a full conviction, finding one side more justified than the other, the question of the superiority of personal convictions opinions may arise.
In the application phase of the legal remedies and appeals law ways in our private legal system, it can be based on the claim that the way the judge used his personal conviction and the resulting decision was unlawful. Although it is thought that this situation cannot be seen as sharply as it is in the criminal law, because the “crime” concept at the focus of the criminal law cases and its consequences concerning the society and the individual claims of illegality in the private law, and therefore the decision that constitutes illegality, both the party of the case and the community’s reaction in the criminal law, in a reasonable legal system, the rules of procedure in private law clearly reveal the illegality of the judge’s judgment in accordance with his conscience.
In the Article 192 of the Code of Civil Procedure entitled “Uncorroborated Evidence in the Law”: “In cases where the law does not require a specific evidence to prove, other evidence that is not regulated in the law may also be applied.” as clearly stated; the principle of “free evidence system” has been adopted in civil jurisdiction. Accordingly, if the law does not stipulate the existence of a specific evidence for the proof of an event with an ordered provision, it is possible to apply illegal evidence as a means of proof. In cases where the existence of a specific evidence is stipulated, if the evidence in question has been prepared by the party, the judge now has to decide whether the claim will be deemed proven. However, if such a special provision is not included in the law, it is possible to apply all kinds of evidence for proof.
As a result, the system of free evidence has been adopted in our law as a general rule within the framework of civil jurisdiction and the judge has the authority to make decisions in the dispute according to his / her personal conviction from the Constitution; when deciding on a private law dispute, Article 190 of the law of the Code of Civil Procedure entitled “Burden of Proof” as stipulated in Article, The party which makes a claim in its favor from the legal result connected to the alleged case shall be under the obligation to prove its claim, since the judge cannot investigate the evidence in accordance with the principle of preparation of the parties, he shall have his own evidence available, and the judge shall rule in favor of the party which he finds more justified on the basis. In private law, as in Criminal Procedure Law, it is not necessary for the judge to make a decision so that all suspicions are cleared. Ultimately, the conviction of the defendant is debated in the criminal trial and this requires that the judge is now free of all suspicions in accordance with the principle that “the defendant benefits from the suspicion” but, given the absence of a judicial sentence in the civil trial, it was arranged that the judge should also be able to decide without being fully sure of the material reality. This is valid in respect of private law disputes, and the doctrine is called “formal reality”.
In private law, as can be seen in the face of the openness of the law, the personal conviction of the judge and the narrow ways of making it a cause of law cannot be mentioned in the effect of such situations as the expectation of Justice of the society. In parallel, this situation occurs mostly in the Supreme Court decisions; in the dispute between the short decision of the judge and the reasoned decision. That is to say; in the 10.04.1992 days and 1991/7 basis 1992/4 decision numbered decision of joint chambers of Supreme Court: “1- The fact that the short decision and the reasoned decision are contradictory is the reason for the disruption. 2- The local court May, after the annulment, decide according to the conscience of the judge, provided that it removes the contradiction, regardless of the previous short decision.” This situation also shows that in private law, the appeal of the judge on the grounds that his / her conscientious objection is unlawful is limited.
If the line of personal conviction is crossed, it causes the judge to create law without the law giving him this opportunity, and this ultimately means that the judge in charge of carrying out the law attaches another result to a legal result. It is not the duty of judges to determine which actions will be brought to what legal conclusion, it is the duty of the legislator. In societies where there is no sense of justice, in particular, where the government oppresses the judge in the case it is a party to and stresses the judge’s duty to make a fair decision, the authority to make laws is allocated to those without a mandate within the legal system, and this can have negative consequences for society as a whole. For example, it could weaken the law on fair trial, increase people’s tendency to evaluate the law in their own interests, or leave law schools vacant. Such an outcome can only be considered in criminal proceedings; because while the analysis of the personal conviction of the judge in criminal law within the framework of the philosophy and sociology of law requires the judge to evaluate his compassion, empathy ability and his moral sense, such a situation cannot be mentioned in civil judgment.
In private law disputes, the probability of an event affecting society is lower than in criminal proceedings. Since it is not common in private law for society to inspect the compliance of a judge’s judgment with justice in accordance with his conscience and openness to interpretation in respect of the subject of private law is limited, it will be more difficult to discuss the ability of judges to have justice. In some cases, however, in private law, the judge may, in the face of the explicit provision of the law, misinterpret the limit of his / her personal conviction and decide to add his / her interpretation in an unlawful manner.
In this respect, one of the most striking examples in private law relates to the custody disputes. Once discussing who should be given custody of the child in the civil law as a result of the established “moral” views of the society, there may be situations where people act in accordance with the question of why the mother should not take the custody, before asking the question why the father should take the custody. The sociological explanation of this comes from the perception that the excluded people are excluded solely by their own acts and will, in a society where the majority of individuals who see no harm in imposing their own moral opinion in a way that interferes with other people’s areas of freedom. The purpose of the law is exceeded when, the mother’s whole life is based on her relationship with her child, as if any choice she makes in her life cannot be related only to herself and the consequences of each step a mother takes are evaluated in the perspective of its consequences for the child. A woman’s work neither gives her the title of “maternity” nor loses it; however, since moral entrepreneurs who try to fit their own narrow view of the society will continue to exist in all periods of history, it is conceivable to come across unlawful decisions.
If justice carries relative meanings from person to person, for the people living in the same legal system, it means that, in a sense, it has lost its conception. The expectancy of justice for different segments of the society may vary, but if we are trying to achieve the absolute justice, the most feasible way would be to adopt positive law. If we characterize the circumstance with an utopia; if an independent legislative organ enables the rules of law created by the democratic procedures for everyone without discrimination and, again, if the judge, who is located in an independent judicial branch, adjudicates in accordance with the rules that apply in the society in which he/she lives, in that period of time, that means, he carries out his duty to preserve the status quo and makes the legal system function. However, the functioning of the legal system may not always lead us to justice; in the end, when laws are not fair in content, justice will not be achieved, despite if they are applied fairly.
The judge’s use of personal conviction in accordance with the Constitution is also closely related to the independence of the courts and judges. That is to say; in a legal system where there is no mention of the existence of an independent judiciary, the personal conviction of the judge will be replaced by the will of another institution, and therefore there will be no mention of the existence of justice and the right to a fair trial. Forwhy, in the case of such a will, the possibility of an objective trial of law will be eliminated. When the parties bring their disputes to before the judiciary, the dispute must be resolved in a court of law established within the framework of pre-determined rules, with the opportunity to attest their claims equally. Interfering with the functioning of the law may not always be an obstacle to the realization of justice, depending on the preferred method. It is the rights guaranteed by law, for people to express themselves when they are wronged, to perform protests and marches and to appeal. The law, which is abstract and absolute, can be achieved by the uncovering of people who cheat, take bribes, who consider themselves superior to others and in this way, try to show their actions in accordance with the law, legitimate and acceptable. If there is no mention of the independence of the judiciary within the legal system and accordingly the independence of the judge, it will no longer serve justice for the judge to decide according to his conscience.
In private law, the judge, while freely appreciating the evidence according to his/her personal conviction, must base his/her opinion on the evidence as a result of this process, and personal conviction is not evidence. Article 184 of the Turkish Civil Code, entitled “Trial Procedure in Divorce” contains a provision as follows: “Judge, unless convicted conscientiously existence of facts upon which divorce or separation suit based, cannot deem proved them.” As can be seen in this provision, the judge has been given a wide authority concerning interpretation of the law. It is possible to conclude that this situation arose in relation to the general purpose of the provisions introduced in the family law. According to the Law, in the dispute brought before the court by the parties, the existence of the facts on which the divorce or separation case is based may be presented to the court with various evidences, but these will not be considered proven until the judge reaches a conclusion regarding their existence according to his personal conviction.
When we compare the principle of preparation of case by parties in private law and the principle of collecting evidence and investigating the material factuality ex officio by the judge in criminal law, it can be extrapolated that claims are more effortlessly proved in criminal cases due to difficulties in proving some phenomenon. Just because, in criminal procedures, after all, the judge is not bound by the evidence presented by the parties to the court, and there are numerous legal institutions that will assist him/her if he wants to conduct further investigation. With the help of these institutions, he/she can reach the material factuality and make decisions by overcoming its suspicion within the framework of the information and evidence he/she collects. On the contrary, in a private law trial, the parties provide their evidence within their means to prove their claims and to shape an opinion in the judge that they are more rightful, additively, they are also exempt from research assistance that the court possesses in criminal proceedings. Therefore, the evidence that a party possesses may not be sufficient to prove its claim and, regardless of the veracity of the material factuality, there may be a possibility of an unfavorable verdict, since it does not arouse the perception in the judge that it is rightful.
Hereby, both in private law and criminal law, the judge, in accordance with the mandatory rule of the Constitution, rules according to his/her personal conviction, in the dispute that has been brought before him/her. The criteria for reaching this opinion differ in two said branches of law. In criminal procedure, it is “suspicion based on justification”, while in civil procedure it is “weighted evidence”. The judge, in private law, in the context of principle of preparation of case by parties, while evaluating the evidences provided within the framework of his power of discretion, grounds on the evidence that it finds more justified and establishes the verdict in favor of the claim that the evidence is deemed to have proven. It does not require to have overcome all doubts and reached a clear conclusion, in order to make a decision. In private law, personal conviction of the judge shows its existence in a more limited way than in criminal law and the main reason for this is due to the nature of the civil judgment as a matter.
Cemre Belçim GÖLBAŞI (Apprentice Attorney at Law)
Translation Support: Adar UÇAR (Attorney at Law)