The judge's dissenting opinion: from formal law to existential duty dictated by conscience

The subject of the study is the problem of contrasting the formal opportunity for a judge to express a dissenting opinion ("right") with the moral necessity to do so ("duty"). Special attention is paid to the existential drama of a judge in a situation of conflict between the opinion of the majority and the dictates of his own conscience when choosing between them. The author aims to analyze the ethical category "conscience", designed to encourage a judge evaluating evidence and making a decision to take into account legal requirements and moral precepts, as a system of ethical and legal presumptions, as a criterion of social justice, as a regulator of public legal awareness. An integrated approach will make it possible to fill the abstract category "conscience" with concrete legal content, turning it from a moral abstraction into a working tool for legal regulation and a guarantee of fairness in proceedings to consider and resolve a criminal case on its merits in a court of first instance. Dialectical, formal-logical, comparative-legal methods, structural-functional analysis and axiological approach are used. The methods of interpretation and theoretical and legal modeling are used. The necessity of institutionalization of the legal categories "conscience" and "inner conviction" in judicial activity is substantiated, and the corresponding rule of law is formulated. The operationalization of the concept of "conscience" in law enforcement practice through an iterative algorithm for evaluating evidence will make it possible to perceive "conscience" as a legal category representing a moral and ethical guideline that guides a judge to make a fair decision entitled to a dissenting opinion. The norm of the criminal procedure law regulating the concepts of inner conviction and conscience should become a practice-oriented proposal.:"Article 17.1 Inner conviction and conscience1. The internal conviction of the court is formed on the basis of an impartial, complete and comprehensive examination of the evidence in its entirety.2. Conscience as a legal category is a moral and ethical guideline that guides a judge to make a fair decision.3. The court is obliged to reflect in the descriptive and motivational part of the verdict the motives of the formed inner conviction, indicating the evidence that influenced its formation and the scientific methods of cognition used."