THE UNCONSTITUCIONAL STATE OF AFFAIRS (ECI) IN BRAZILIAN SOCIOECONOMIC REALITY: SYSTEMIC RIGHT VIOLATIONS AND HEALTH ACESS FLAWS

Abstract

The Unconstitucional State of Affairs (ECI) is always the result of fatical situations of parliamentary or admnistrative paralisys in certain matters. The ECI reveals itself as an important instrument, yet far away from the ideal in a democratic state, to overcome institutional barriers and make the State machinery work. Beyond overcoming political and institucional barriers, structural judicial intervention can have the effect of increasing the deliberation and dialogue about the ECI causes and solutions. Making use of flexible orders and monitoring, it is granted the participation and decision margin provenient from the many diffrent political and social actors about the solutions that could be used to overcome the structural issues. Actuating as that, the courts, instead of judicial supremacy, foment dialogue between Society and the state institutions, promoting effectiviness and democratic gains inside the decision. The ADPF 347, that treated about the human rights violations that ocourred in the brazilian prision system, is an exemple on how the ECI was used in the brazilian juridical order. Nevertheless, one question that reamais is wether it is possible that new scenarios of violations, inside brazilian scope, may or not be treated as an ECI. In this sense, it is possible to affirm that the public health system, specifically the Unique Healt System (SUS), desserve that treatment by the Supreme Cout, that will be able to show solutions through the social participation, in form of publical audiences and the participation of amici curiae. Also, by having the goal of giving effectiviess to the sentence, the court could adapt the previously presented solutions already given by the original sentence through decisional adaptation as new demands emerge over time, giving rise to a need for decisional follow up.