O mandado de injunção no ordenamento jurídico brasileiro: análise crítica da equiparação da homofobia ao crime de racismo pelo Supremo Tribunal Federal

Abstract

This monograph proposes the analysis of the recent judgment in the Supreme Court in Injunction No. 4733 in which it equated homotransphobic conduct with the conduct of racism typified in Law 7716/1989. The interest in the subject arose in the face of doctrinal criticism stemmed after the decision that the Court would have acted usurped the private competence of the National Congress to criminalize conduct and, therefore, hurt the dictates of the Federal Constitution. However, it is noted that, despite what claims part of the doctrine, the decision of the Pretorium Excelsus used strong jurisprudence and doctrinal goals (from areas such as Constitutional Law and Public International Law) and other sciences to correctly conclude that homophobia is the result of social racism. Therefore, it is necessary to reflect on the remarkable characteristics of writ (Injunction) positive in Article 5, LXXI, of the Federal Constitution and with its regulation by law 13.300/16, which substantially altered the scope that the higher courts have given to this important institute over the decades and various compositions of the Court. For this, a study was carried out with scientific material, from doctrinal books to legal journals and jurisprudential productions, through the inductive method. The thesis put forward is that that decision did not respect the principle of strict legality in criminal matters and neither can the definition given by the Supreme Court be considered innocuous on the point of view of criminal policy