A ameaça ao estado democrático de direito devido a abertura de precedente pelo stf quanto a criminalização da homofobia e transfobia como racismo

Abstract

The purpose of this article is to make an analysis of the decision of Supreme Federal Court (STF) on the direct Action of Unconstitutionality by Omission – ADO 26/DF and Mandate of Injunction – MI 4733, in which of, by a unconstitutional way, the Court equated the homofobia to the racism crime, to bringing lesion to the principles of Separation of Powers, Legality and of the legal reserve, because of the production of penal norm of incrimination. Here wil be to introduced the argument which steady the juristic thesis and principles which give support the decision, as well as, the principles and constitutional norms that were transgress at the decision. Likewise, will be exposed the risks to the juridical order which the production of one penal type by Judicial Power representes to the constitutional State. At this work, the method used were the qualitative research in pursuit of theoretical reference in cientific articles, constitutional doctrines, at the constitutional norms and constitutional legal, likewise the jurisprudence. Were concluded that not is jurisdiction of the Judicial Power the criminalization of conduct, becouse are unconstitutional, and incongruous which their prerrogative, and representes a serious threatening to the brazilian State Democratic of Law.