Summary

Section 14 of the Constitution provides that the guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers and of local governments. In the author’s opinion, the fundamental right to procedure by the state as set forth in section 14 is not only confined to court procedure but covers procedure in the broad sense. The author considers it necessary to determine the available and absent procedures for the performance of the duty arising under section 14. In addition, the author analyses whether section 14 also gives rise to the duty of the judicial power to establish, if necessary, a court procedure if the legislative or executive power has failed to do so, in order to guarantee a fundamental right.

An important feature of any fundamental right is its effective implementability. Therefore, the right to take recourse to the courts and the right of appeal should be treated differently from the other fundamental rights, namely, as a subsystem of the complex fundamental right to judicial settlement of a legal conflict.