Objectives: to examine the theory of the Unconstitutional State of Affairs (ECI), formulated by the Constitutional Court of Colombia and subsequently incorporated by the Brazilian Federal Supreme Court (STF), from a historical, conceptual, and applied perspective. Theoretical Framework: the research is grounded in the theory of the Unconstitutional State of Affairs (ECI) as a critical instrument of constitutional analysis, articulating the foundations developed by the Colombian Constitutional Court, the jurisprudence of the STF, and the general theory of fundamental and human rights. Method: the study adopts the hypothetico-deductive method, with a monographic approach, based on bibliographical research and analysis of doctrine and case law from both the Colombian Constitutional Court and the Brazilian Federal Supreme Court (STF). Results and Discussion: The jurisprudential analysis of the ECI theory reveals the gap between normative formulation and the effectiveness of fundamental rights, emphasizing the interdependence between fundamental rights and state duties. It was observed that the full enjoyment of these rights depends on social and institutional commitment to their enforcement and on coordinated action among the branches of government. Once an unconstitutional state of affairs is identified, there is no room for the full realization of citizenship, which calls for structural and cooperative responses to address widespread violations of rights. Research Implications: tthe findings reinforce the relevance of the ECI theory as a legal and political instrument of social transformation, capable of promoting integrated institutional action and confronting structural and persistent violations in democratic contexts. The research contributes to the improvement of institutional practices and to the strengthening of judicial oversight of public policies, as well as to the development of shared accountability and justification standards in constitutional governance. Originality / Value: the originality of the study lies in the systematic analysis of the application of the ECI theory within the Brazilian context, through a comparative examination between the Colombian experience and the STF precedents. The paper offers a critical and applied interpretation of the Judiciary’s role in overcoming structural state omissions, highlighting the ECI theory as an innovative mechanism for the realization of fundamental rights in democratic societies.
Bertaso et al. (Mon,) studied this question.