Constitutional Critique of the Judgment in AP 1,060/DF: Opportunistic Activism, the Weakening of Judicial Precedent, and the Transformation of the Brazilian Supreme Court into a Criminal Tribunal
Murillo Gutier | murillo@gutier.adv.br
Abstract
This study offers a constitutional critique of the judgment in AP 1,060/DF by the Brazilian Supreme Federal Court (Supremo Tribunal Federal – STF). The analysis focuses on the tension between this decision and the restrictive doctrine of special jurisdiction by reason of office (foro por prerrogativa de função) consolidated in AP 937 QO/RJ (2018) and ADI 2,553/MA (2019). While these earlier rulings recognized special jurisdiction as an exception to the natural judge principle, binding it to offenses committed during the mandate and in the exercise of official functions, the AP 1,060/DF decision pursued the opposite path: through the broad use of connection, the Court absorbed ordinary defendants on a massive scale, effectively transforming the STF into an ordinary Criminal Tribunal.
The study examines the inversion of the severance rule, the violation of the natural judge principle (Article 5, LIII and XXXVII of the Constitution), the deficit of dual jurisdiction (Article 8(2)(h) of the Pact of San José), and the political context of the judgment and its impact on judicial serenity. Furthermore, the decision is analyzed through Georges Abboud’s typology of activisms, demonstrating that it cumulatively exhibits at least five activist modalities: performative activism, activism against the limits of the text, populist-punitivist activism, purely consequentialist activism, and administrative activism.
Finally, the study identifies the phenomenon of opportunistic activism (ativismo de ocasião) as a recurring pattern in the STF’s recent jurisprudence: an interpretive stance that, under political pressure, loosens its own established precedents, thereby undermining the binding force of constitutional adjudication, the epistemic authority of the Court, and the constitutional jurisdictional architecture of Article 102 of the Federal Constitution. The study concludes that the decision constitutes a self-contradictory precedent that acts in the name of the Constitution against the Constitution itself.
Keywords: special jurisdiction by reason of office; opportunistic activism; natural judge principle; judicial precedent; constitutional jurisdiction; AP 1,060/DF; Brazilian Supreme Court (STF).
Is the Brazilian Supreme Federal Court a Criminal Court? - Murillo Gutier (2 downloads )