Criminalização da homofobia e transfobia pelo Supremo Tribunal Federal e o (des)respeito à dogmática jurídico-penal

Abstract

This paper aims to verify if the decision of the Federal Supreme Court to criminalize homophobia and transphobia, framing them in the law that disposes about crimes resulting from prejudice of race or color (n. 7.716/89), respects the criminal legal dogmatic, more specifically the principles of legality and prohibition of analogy in malam partem. Over the past years, the Court has issued rulings that affect the sphere of action of other public powers, evidencing an expansion of its constitutional jurisdiction. The choice of this paper’s subject is justified by the impact of the creation of a precedent authorizing the possibility of criminalization of conducts by the Judiciary, considering that this is a typical and exclusive activity of the infraconstitutional legislator, making it necessary to analyze whether the means used for the realization of fundamental rights of LGBT community members are in line with the basic principles of the brazilian criminal legal system. To achieve the objectives of this research, its structure was divided into three chapters. In the first one, a bibliographical review of judicial activism was conducted in order to understand this phenomenon and to verify if the Federal Supreme Court acted in an activist manner, going beyond the limits of its constitutionally delimited jurisdiction. It was also investigated the influence of the omission and crisis of representativeness of the Legislative allied to the aspirations of minority groups to ensure their fundamental rights through criminal intervention over the activist posture of the Court, especially in criminal matters. In the second chapter, it was discussed the criminal legal dogmatic, its main principles and their functions in the legal system. The principles that allow the analysis of the decision object of study were pointed out, namely, the principle of legality and the prohibition of analogy. In the third chapter, it was analyzed the decision rendered by the STF in the joint judgment of the Direct Action of Unconstitutionality for Omission nº 26 and the Injunction nº 4733, studying the vote of each minister and highlighting the arguments linked to the this research. Finally, it was verified whether the mentioned decision is in conformity with the criminal legal dogmatic and whether it consisted of judicial activism, in violation of the principle of separation of powers. Regarding the methodology, it was applied the hypothetical deductive method and bibliographical research was performed. It was concluded that the decision of the Federal Supreme Court to criminalize homophobic and transphobic acts, subsuming them in Act nº 7.716/89, given the omission of the National Congress, violates the principles of legality and analogy in malam partem, which prohibit the creation of crimes through an instrument other than the law in the formal sense or the extension of the scope of the law to cover a hypothesis not expressly foreseen in it, being a situation of judicial activism of the Court, which violated the principle of separation of powers by engaging in activity not attributed to it by the Constitution.