A criminalização da homofobia pelo Supremo Tribunal Federal e os possíveis limites na formação dos precedentes penais

Abstract

This article aims to ascertain whether there are limits to the formation of criminal precedents, as well as what those limits would be, based on the analysis of the decision regarding the criminalization of homophobia by the Supreme Federal Court. To do, through a qualitative research, using the deductive method and the bibliographic review technique, it is necessary to study the need for homophobia criminalization, the decision mentioned, as well as the analysis of judicial activism in which it matters and the possible limits for the formation of precedents in the criminal sphere. It appears that the determination to apply Law n°. 7.716 / 89 to homophobic behavior by Federal Supreme Court goes beyond its jurisdiction and does not observe the principle of legality, neither does the prohibition of the analogy in malam partem .