NEGRO DE ALMA BRANCA? A GUINADA HERMENÊUTICA ACERCA DA INJÚRIA RACIAL NO STJ E STF

Abstract

Brazilian’s anti-racist criminal legislation was born in response to the demands of the brasilian Black Movement; however, since the pioneering Afonso Arinos law, until today, there have been several criticisms from the movement and the Academy about its effectiveness. Regarding the crime of racial insult, it is questioned whether and how the legal doctrine and jurisprudence have carried out a constitutionally adequate reading of art. 5º, XLII, of the Federal Constitution. Adopting the deductive method and documentary analysis, the present article intend to explore the controversies about the crime of racial insult based on the case Heraldo Pereira versus Paulo Henrique Amorim at STJ and STF, where the decision made was for its imprescriptibility. Therefore, the category of racism, its conceptions and main aspects are approached. Subsequently, analyses the transformation of anti-racist legislation in Brazil and its instrumentalization in wranglings in the legal field. Finally, the hermeneutic shift at STJ and STF regarding the crime in question and its material and procedural criminal implications are addressed. It concludes that the thesis accepted by the STJ and STF in the case was correct, carrying out an adequate constitutional reading of the concept of racism (Ellwanger Case) and in tune with the empirical data, in order to face the most common racist manifestation.