The judge’s binding to the law and the search for truth in criminal proceedings: reflections on the concept of truth in criminal proceedings

Abstract

The present article analyses the rule of law principle in its practical aspect of binding a judge to the law. However strict the rules and the legal precepts may be, there’s a margin of freedom for the judge in his interpretation, a projection of his subjectivity and, with it, all the emotional burden from the feelings that the fact he/she will judge awakens. The article argues that the judge’s binding to the law does not guarantee any justice in his decisions, if the judge is not bound to the unrelenting reality of the facts to which the law must be served. From this point it analyses the problems of searching the truth within criminal procedure in a State governed by the rule of law, especially in the aspect of limitations to the power of approximate reconstruction of the facts. The conclusion, after studying jurisprudential precedents, is that criminal procedure in a State governed by the rule of law must reconcile the search for the truth (not as the absolute truth) with the dignity of the accused.