Carlos
Eduardo Ferreira dos Santos
PhD student in
Public Law in the University of Coimbra. Master in Constitutional Law in the
University of Castilla-La Mancha and in Criminal Policy in the University of
Salamanca. Lawyer. E-mail: eduardosantos39012@gmail.com
ABSTRACT
This article analyzes the criminalization of
homophobia in Brazil through a decision by the Federal Supreme Court (STF). The
methodology is based on the inductive method combined with bibliographical
research. After analyzing the principle of criminal legality, which is
recognized both in domestic and international law, it is found that only the
law can establish crimes and the respective penalties, in compliance with the
basic principle nullum crimen sine lege. Next, the recent jurisprudence
of the Federal Supreme Court on the subject is analyzed, which equated the
practice of homophobia, until then without a specific law, to the crime of
racism, provided for in Law nº 7.716/1989. By proceeding in this way, the STF,
according to the judicial theory (mens iudicis) proposed in this
article, ended up creating a crime through jurisprudence, that is, it
instituted a typical figure and the respective criminal sanction through the
decision of its ministers. However, jurisprudence does not constitute the
appropriate instrument to create crimes, as these are established only by law,
being the result of the deliberation of the Legislative Branch, and not of the
decision of ministers of the Supreme Court, under penalty of violating the
principle nullum crimen sine lege and the prohibition of the use of
analogy in malam partem.
Keywords: Homophobia. Creation of a crime by jurisprudence. Brazilian Supreme Court. Mens Iudicis.
Reviewed by Current Scientific Journal
on
janeiro 07, 2026
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