Da imprecisão normativa à impunidade: a insegurança jurídica no enfrentamento ao antissemitismo no Brasil

Abstract

This dissertation analyzes the legal uncertainty in addressing antisemitism in Brazil, investigating how the lack of precise definitions and the inconsistent application of Law No. 7,716/1989 contribute to impunity and weaken criminal protection. The topic is relevant given the sharp increase in antisemitic manifestations in the country—particularly on social media—and the persistent difficulty of the justice system in responding coherently, even in light of the constitutional mandate to criminalize racism. The research seeks to understand why the Brazilian legal system still hesitates to properly recognize and punish anti-Jewish hatred. It begins by examining the conceptual and symbolic foundations of Judaism and antisemitism, demonstrating that the former extends beyond the sphere of religion and encompasses ethnic, cultural, and historical dimensions. Thus, antisemitism cannot be reduced to religious intolerance, as it targets the very identity and collective belonging of the Jewish people, constituting a specific form of racism. The study then examines the legal framework of hate crimes in Brazil, focusing on the 1988 Constitution and Law No. 7,716/1989, and discusses the principles of human dignity, equality, and pluralism. Finally, it analyzes the judicial approach to antisemitism and its recognition as a crime of racism, highlighting the Ellwanger Case (STF, HC 82.424/RS) as a milestone in the Supreme Court’s understanding of the issue. The research found that a significant level of legal uncertainty persists in the criminal prosecution of antisemitism, stemming from the lack of specificity in the law, which fails to define antisemitism or provide clear interpretive guidance. This conceptual gap became evident in the analysis of divergent judicial decisions, where similar conduct was classified in some cases as a crime of racism and in others as mere insult or expression of opinion. This interpretive inconsistency exposes the fragility of the legal response and the contrast between the rising number of antisemitic incidents and the limited accountability observed in practice. Empirical data and reports from the Confederação Israelita do Brasil (CONIB) and the Anti-Defamation League (ADL) corroborate this disparity, showing an increase in antisemitic manifestations in recent years, particularly in digital spaces. It is concluded that the absence of an explicit legal definition of antisemitism compromises the effectiveness of Law No. 7,716/1989 and weakens Brazil’s criminal response. This conceptual gap generates interpretive uncertainty and allows hate speech to be relativized under the pretext of freedom of expression. The study argues that addressing antisemitism requires a historically informed constitutional hermeneutic capable of recognizing anti-Jewish hatred as a specific manifestation of racism and reaffirming, through criminal law, the core values of the 1988 Constitution — equality, dignity, and collective memory