The unconstitutional state of affairs and the protection of fundamental human rights

Abstract

A technique developed by the Colombian Constitutional Court called "The Unconstitutional State of Affairs," a new and little-studied topic, is used in judgments when there is a widespread violation of fundamental human rights, caused by the constant and persistent inactivity or ineptitude of public authorities in altering the current context, such that only structural modifications in the exercise of Public Power and the performance of a diversity of authorities are capable of transforming the unconstitutional situation. With the Unconstitutional State of Affairs, a new way of solving structural problems will be formed, allowing for decisions that create mechanisms to unimpede channels of deliberation, aiming at the control of the organization and execution of public policies in a participatory manner, generally committed to the protection of violated rights. Thus, this research proposes an analysis of the theory, its requirements and parameters so that they can be applied to the Brazilian reality in situations of violations and unconstitutionalities of fundamental rights protected by the Federal Constitution. For this research, a qualitative bibliographic method was used, which was developed through a systematic search of books, articles in periodicals, websites, and current magazines that address the topic, in addition to the then-current legal framework. Regarding the scientific methodology of analysis, theoretical-descriptive methods were used, as well as a dialectical analysis of the presented problem.