Criminalização das condutas homotransfóbicas no julgamento da ADO 26 e do MI 4733-DF à luz do princípio da legalidade : crime sem lei?

Abstract

The present work aims to analyze the judgments of ADO-26/DF and MI 4.733-DF under principle of legality. In these judgments, the Supreme Court equated homotransphobic conduct with the crimes in Law nº 7.716/1989 (Racism Law). The main goal is to discuss whether there was a violation of the principle of legality. Secondarily, the work deals with were addressed: possible usurpation of legislative competence by the Federal Supreme Court, the influence of fundamental rights jurisprudence, judicial activism and the possibility of criminalization by instruments to combat the ineffectiveness of constitutional norms . The main methodology used consisted of a case study of the judgments of ADO 26/DF and MI 4.733/DF, with hypotheses being formulated to verify a possible violation of the principle of legality. Secondarily, other methods were used, such as bibliographic research and documental research. The bibliographic research focused on certain themes such as judicial activism, the principle of legality and judicial activism. In turn, the documentary research focused on STF precedents about the fundamental rights of minorities and the principle of legality. It should be noted that the institutional focus was the Supreme Court. Only decisions from this government body were analyzed.