Criminalização de condutas por meio de mandado de injunção e ação direta de inconstitucionalidade por omissão

Abstract

The present work has as main objective to analyze if it is possible that through the instruments of constitutional control by omission, which are the Injection Warrant and the Direct Action of Unconstitutionality by Omission are criminalized conduct. This, recently, the STF has upheld both the request contained in the injunction No. 4,733, as well as the Direct Action of Unconstitutionality by Omission No. 26, in order to determine that it is a homophobia framed as the criminal type defined in Law No. 7,716 / 1989 (Law of Racism). The methodology used is exploratory and qualitative, based on bibliographic research and literature review, as well as research on legislation and the recent STF judgment, in the following two actions. Thus, it is possible to analyze all the reference points related to the criminalization of conduct, which comprise most of the points that involve the theme. Then, it was analyzed about the constitutionality control, in particular no omission of unconstitutionality and the instruments that the Federal Constitution attributed to the Judiciary to face it. Finally, from the point of view also focused on constitutional jurisdiction, the case law established in the Supreme Court was analyzed, in the judgment of actions that sought to register a legislative action when conducting a criminalization of homophobia. In this decision, several points were observed that were incoherent, both by constitutional and criminal principles, as well as by a scope received for instruments of control of constitutionality by default. Thus, it was possible to verify the reliability that through these instruments the criminalization of the conduct is carried out, especially as done by the Supreme Court.