Racismo e injúria racial no ordenamento jurídico brasileiro: análise da pertinência da diferenciação realizada pelos tribunais pátrios

Abstract

The present work aims to criticize the current position of doctrine and jurisprudence in the criminal court that does not recognize the crime of racial injury (art.140, §3 of the Brazilian Penal Code) as a kind of racist crime such as those that are inserted in Law 7.716 / 1989 (Anti-racism Law) with the consequent imprescriptibility and unsafability of the crime. To this end, a brief historical overview of the theme of racism is launched, as well as a review of jurisprudence and doctrine, especially the legal doctrine and the "Heraldo Pereira case". It is tried to demonstrate that the non-framing of art.140, §3, CP as a kind of racist conduct almost completely extinguishes the fight for the criminal legal system of this practice that the Constitution of the Federative Republic gave rigorous treatment in its art.5, XLII, CF, stating whether it treats racism of an imprescriptible and unapproachable crime. It is concluded that, therefore, there should be a new look on the part of the judges in the sense that, despite not being included in Law 7,716 / 1989, to treat racially-motivated crimes against racial injustice, under penalty of depriving anti-racism legislation in Brazil.