THE CRIMINALIZATION OF HOMOPHOBIA BY DECISION OF THE FEDERAL SUPREME COURT

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.