HERMENEUTIC INNOVATIONS ON THE CRIME OF RACISM: A CASE STUDY OF THE DIRECT ACTION OF UNCONSTITUTIONALITY BY OMISSION (ADO) NO. 26 AND LAW NO. 7,716/1989

Abstract

Due to the high numbers directly related to violence against the LGBT community, in addition to the recent decision of the Supreme Court in ADO 26/DF, concretizing the crime of homophobia, this work can study the legitimacy of this criminalization before the legal system and the social need, in addition to carrying out an analysis regarding the typification of a new conduct through a judicial decision. The objective of this study was to analyze the impacts of the decision in ADO 26 on the judicial interpretation of the crime of racism, homophobia and transphobia in order to understand the changes and developments in the application of anti-racism legislation. To this end, there was a bibliographic study, through articles and books related to the theme, being considered essential steps. The results made it clear that the STF has started to have a more active conduct in situations of crime of racism, seeking to give greater efficiency to the device created by the constituent, adopting the concretist theory. Therefore, it can be concluded that the change in the STF's stance regarding some issues, such as dealing with unconstitutional omissions, has still occurred slowly and gradually, even though it is necessary. The Supreme Court of Brazil has gained greater prominence in the national scenario to the detriment of the Executive and Legislative Branches, at the same time that it has contemplated their functions, precisely because they are inert in their respective typical functions.