Mandado de Injunção N° 4.733: análise crítica hermenêutica da decisão tese do Supremo Tribunal Federal sob a perspectiva da dogmática penal brasileira

Abstract

The Federal Supreme Court (STF) has faced increasing criticism due to its stance of judicial activism, manifested in decisions that impact various sectors of society. This study analyzes the judgment of Writ of Injunction N°. 4733, which equated the conducts of homophobia and transphobia with conducts motivated by racial prejudice (Law N°. 7.716/89). The focus lies on the viability of extensive interpretation as a basis for such criminalization and the possible developments of the decision in question. The research was based on various doctrines of hermeneutics and legal interpretation, Criminal and Constitutional Law, as well as other sources addressing the concepts of gender and race. Thus, the study concludes that the ruling violates the principle of strict legality and the legal reserve. It is argued that there was a mistaken interpretation of Art. 5°, items XLI and XLII of the Federal Constitution, resulting in the application of an analogy in malam partem, which is prohibited by the criminal legal system.