THE STF DECISION IN HC No. 154.248/DF: THE PROBLEM OF JUDICIAL ACTIVISM IN THE EQUALATION OF RACISM TO RACIAL INJURY

Abstract

This work proposes a discussion of the STF's decision in HC 154.248/DF, which equates racism to racial insult. In 2020, the case's rapporteur, minister Edson Fachin, voted to equate racial insult (article 140, paragraph 3 of the 1940 Penal Code), with the crime of racism provided for by Law 7,716/1989). The objective of this work is to analyze the STF's understanding that led to the decision to equate racial insults with racism. Although they are correlated, the concepts of racism, discrimination and prejudice are not the same. The objective, therefore, is to analyze the decision of the Federal Supreme Court (STF) that equated racial insult to the crime of racism. The main interest is to reflect on the aforementioned judgment, based on the contemporary issues of judicial activism. The topic divides opinions and awakens criticism among citizens, something that was once unimaginable to think that the Judiciary could make decisions that were not based on the integrity of the law and/or that the Federal Constitution was not the main path for decisions and judgments. The method used in the research was a bibliographical and exploratory and qualitative approach, for consultation and literature review, allowing to search for information about the problem, obtaining more recent studies on the interpretation/application of contemporary law, constitutional interpretation, democracy and limits to the creative action of the Brazilian Supreme Court, notably with regard to the equation of racism with racial insult.