Estado de coisas inconstitucional e o processo estrutural: instrumentos para a efetivação dos direitos fundamentais.

Abstract

The effectiveness of the norms that define fundamental guarantees and rights is still a challenge for contemporary constitutionalism and for constitutional jurisdiction. Despite the “art. 5º, § 1º, of the Constitution” to determine the immediate applicability of these norms, there are numerous examples of the absence and ineffectiveness of policies aimed at the realization of fundamental rights. In this area, the jurisprudence of the Colombian Constitutional Court, when analyzing the syndrome of ineffectiveness of fundamental rights in that country, constructed the concept of an Unconstitutional State of Affairs, a socio-legal phenomenon that has as its background the massive and repeated violation of rights in the Constitution, provoked for failures arise from the Public Power. This monograph analyzes the historical-doctrinal matrix of theory and his compatibility with the Brazilian legal system, considering that the Unconstitutional State of Affairs has already been recognized by the Supreme Federal Court in “ADPF nº 347/DF”. Furthermore, the suitability of the structural process as an instrument for overcoming the ECI is enhanced, because the correction of the shortcomings found goes through the reorganization of bureaucratic structures that make the exercise of fundamental rights unfeasible. Then, it seeks to face the criticisms formulated to the activist performance of the constitutional jurisdiction when declaring the ECI, concluding by the constitutionality of the expansive performance of the Supreme Federal Court in the coordinated implementation of public policies, as long as an institutional dialogue between the authorities involved is established.