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All Journal International Journal of Constitutional and Administrative Law
Sander Ferreira Martinelli Nunes
Instituto Educacional Santa Catarina

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Two Rationalities of Constitutional Adjudication: Jurisdictional Expansion and Guarantist Restraint in the Brazilian Supreme Federal Court’s Coup-Plot Judgment Sander Ferreira Martinelli Nunes
International Journal of Constitutional and Administrative Law Vol. 2 No. 2 (2026)
Publisher : Gorontalo Legal Research and Consulting

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.66502/jfb5mp62

Abstract

This article examines the competing constitutional and procedural rationalities expressed in the opinions of Justices Alexandre de Moraes and Luiz Fux in the Brazilian Supreme Federal Court’s adjudication of the 2022-2023 coup-plot prosecution, from the acceptance of the indictment in Petition No. 12,100/DF to the merits judgment in Criminal Action No. 2668. Adopting a doctrinal and critical-analytical method, the study evaluates each opinion against three parameters: the jurisdictional architecture of Article 102 of the 1988 Constitution, the procedural guarantees of Article 5, and the fair-trial standards of Article 14 of the International Covenant on Civil and Political Rights and Article 8 of the American Convention on Human Rights. The analysis identifies in the rapporteur’s reasoning a pattern of interpretive expansion operating across four dimensions: retention of original jurisdiction after the termination of the defendants’ public offices, aggregation of investigative and adjudicative functions in a single justice, a permissive threshold for evidentiary sufficiency, and an expansive construction of the offences introduced by Law No. 14,197/2021. The dissent, by contrast, rests on a narrower jurisdictional premise anchored in the binding precedent of AP 937, on strict typicity, and on an effective rather than merely formal conception of equality of arms. The article argues that these are not competing readings of the same doctrinal materials but two distinct models of constitutional adjudication, and that the Brazilian case offers a cautionary illustration of the institutional costs of democratic self-defence exercised through criminal jurisdiction.
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