lva, Êunyton Verçosa da. Da equiparação da homofobia ao crime de racismo por meio da Ação Direta de Inconstitucionalidade por Omissão número 26

Abstract

This monograph aims to study the Direct Action of Unconstitutionality by Default Number 26. Firstly, a summary of the case and points that involve it, namely the Racism Law and the Ellwanger case, will be exposed. Subsequently, the Constitutionality Control types and the Injunction Warrant will be analyzed, with a deeper look at the Direct Action of Unconstitutionality by Default. Subsequently, the fundamentals of the decision and its implications in Criminal Law will be exposed, initiated by the conceptualization and application of judicial activism in the Brazilian scenario combined with the differentiation of the integrative and interpretative methods. As for the interpretation, the focus will be on the analogy in malam partem, extensive and analogue interpretation so that we can then reach the interpretation according to the Constitution, at this point we will try to understand its proper use and conceptualization, serving as an important legitimizing substrate of the judgment. Lastly, criticisms will be outlined regarding the mitigation of the principle of separation of powers as well as judicial activism, by demonstrating the validity of the arguments that contradict the decision under study and the dangers and inconveniences produced by the legislative action exercised by the Judiciary, more specifically by the Federal Court of Justice.