Ações estruturais, direitos fundamentais e o estado de coisas inconstitucional

Abstract

This work has the purpose to study the structural injunctions used to protect civil rights, which originated the figure of the unconstitutional state of affairs through the decisions of the Constitutional Court of Colombia. One of the goals was to investigate the historical origin of these actions and define its concepts taking advantage of the foreign literature, anticipating how these actions could be introduced in Brazil. The requisites of these actions were listed, as the state negligence which generates structural failures and the urgency and complexity of the cases. The most important objections to theses actions are faced, as those who claim that these decisions are examples of judicial activism, with violation of the idea of democracy and separations of powers, and also those who argues the lack of institutional capacity of the judiciary to choose the best means to overcome these situations, allied to the excessive remedial discretion used by courts. It is also investigated the several techniques and parameters used to decide these cases and the implementations's models of command and control, flexible remedies and the democratic experimentalism. The effectiveness of theses actions and decisions were studied. The methodology of the study consisted on the research on the main foreign and national works on the subject, including texts which contains a critical and constructive opinion on the matter.