The Joint Trial of ADO Nº 26 and MI 4733:

An analysis of its coherence and integrity with the Brazilian legal system

Abstract

Palavras-chave: constitucionalidade; omissão legislativa; interpretação; direito penal

Keywords: constitutionality; legislative omission; interpretation; criminal law

The purpose of this article is to analyze the joint judgment of ADO 26 and MI 4833, which extended the classification provided for in Law 7.716 / 89 to crimes resulting from discrimination of race, color, ethnicity, religion or national origin, discrimination by sexual orientation or gender identity, as a consequence of the recognition of unconstitutional omission by the National Congress in legislating on the matter. The problem is related to the possible existence of a decision inconsistency with the legal propositions extracted from legal-penal dogmatics. The adopted methodology consists of the reconstruction of the rationality of the judicial decision, with subsequent verification of its compatibility with the legal-penal dogmatics. As a result, focusing on the judicial decision, after analyzing the legal argument developed, it was possible to verify that it does not hold up when rationally confronted, given that a judicial review of the subject for counter-majoritarian protection of individual rights is not so much justified because the law, to some extent, has already protected the interests of the minority, and because it comes up against the principle of strict legality to criminalize conducts, which includes, in a broad sense, the prohibition of analogy in malam partem and extensive interpretation.