The plea of unconstitutionality in the
courts: from the rule of article 97 of the Federal Constitution to the
systematization of
Name: JOÃO VICTOR GOMES CORREIA
Publication date: 25/05/2026
Examining board:
Name |
Role |
|---|---|
| FLAVIO CHEIM JORGE | Examinador Interno |
| JOSÉ LEVI MELLO DO AMARAL JÚNIOR | Examinador Externo |
| RICARDO GUEIROS BERNARDES DIAS | Examinador Interno |
| THIAGO FERREIRA SIQUEIRA | Presidente |
Summary: Subject: This study examines the procedure for incidente of claim unconstitutionality in the
courts under Article 97 of the Constitution, a provision that prohibits panels from declaring a
law or normative act unconstitutional, requiring instead an absolute majority of the members of
the court or special body. The scope of this research focuses on the procedural framework for
enforcing this rule in incidental review exercised by collegiate bodies, with an emphasis on the
transition of the constitutional rule to the procedural level and the formation of the procedural
motion. Problematic: Although the literal wording of Article 97 of the Constitution suggests
simplicity, its observance imposes significant procedural complexities, such as the limits of the
panels, the heterogeneity of court rules, and the insufficiency of Súmula Vinculante n. 10 to
resolve controversies regarding the admissibility and dismissal of the procedural motion;
previous literature has addressed the topic predominantly from a constitutional perspective,
without independently addressing the procedural regime. Problem: Based on Article 97 of the
Federal Constitution, what is the appropriate procedure for the incidente of claim
unconstitutionality before the court? Methodology: Bibliographic research and documentary
analysis were employed in conjunction; the former was structured around three axes, focusing
on foreign literature regarding the full bench rule and judicial review, on national legal
studies since the 1891 Constitution and on the theoretical framework concerning incidental
issues and judgment in panels; the latter focused on internal rules, resolutions and normative
acts of state, federal, regional and higher courts, on relevant legislation and on the judgments
that gave rise to Súmula Vinculante n. 10, using a qualitative approach. Results: The
appropriate procedure stems from the interplay between the functional jurisdiction reserved for
the plenary or the special body and the protocol of voting by absolute majority for a declaration
of unconstitutionality, through a functional division carried out by the panels, whose critical
point lies in the admissibility judgment made there, when compliance with Art. 97 is effectively
decided; the constitutional rule was attributed a dual dimension, simultaneously of
jurisdictional and adjudicative, with implications for the calculation of the majority, the
recipient bodies and the objective scope of the norm; the admissibility judgment was
systematized into three successive filters, organized around the relevance of the constitutional
issue to the outcome of the object of the lawsuit, the appropriateness of the motion and the
plausibility of the claim, with this ruling concentrating both the greatest procedural deficiency
and the core of the identified problem. Contributions: The dogmatic delineation of the content
of Article 97 was promoted, with an emphasis on its dual nature; the legislative technique of
the motion was clarified as an instrument linking the prejudicial nature of the constitutional
issue to the normative core of the provision; the scope of the courts’ procedural authority was
defined, establishing parameters for the exercise of the jurisdiction provided for in Article 96,
I, of the Constitution; and a systematic contribution was made to the ongoing debate on the
preliminary draft of the code of constitutional procedure.
