O estado de coisas inconstitucional e seu caráter estruturante na proteção aos direitos fundamentais

Abstract

The Supreme Federal Court, using a technique developed by the Colombian Constitutional Court, solved a litigation regarding the effectiveness of Human Rights, with the so called ˜El Estado de Cosas Inconstitucional˜, a topic still new and little studied in Brazil. This judgment technique is used when a situation of vast violation of fundamental rights is verified, caused by the constant and continuous inactivity or ineptitude of public authorities to alter the current context, in such a way that only structural changes of the exercise of Public Power and the action of a diversity of authorities are able to transform the unconstitutional situation. The Unconstitutional State of Things will form a new way of solving structuring problems, and it will be possible to utter decisions that create mechanisms to open deliberation channels, which aim to control the organization and execution of public policies in a participatory manner, committed in general with the protection of the lost rights. Therefore, this research proposes an analysis of the theory, the requirements and parameters to apply it to the Brazilian reality in situations of violations and unconstitutionality to the fundamental rights covered by Federal Constitution. This research was realized in a qualitative bibliographic manner, by a systematic research in books, articles, journals and websites that approach the subject, in addition to the current Legal Order. As for the scientific method of the analysis, theoretical and descriptive methods were used, as well as a dialectical analysis of the presented matter.