Judge Ricardo Lewandowski, of the Federal Supreme Court, rejected a habeas corpus order in which the defense of the orthopedic doctor requested the suspension of the criminal case responsible for the offense of passive corruption, for allegedly performing surgeries on the Unified Health System (SUS). ).
At the invitation of the SUS, the doctor was arrested in this act and denounced by the Ministry of Public Affairs of Paraná for charging R$4600 to a woman for knee surgery at Bom Jesus Hospital, Toledo (PR). After borrowing money from her daughter-in-law, she is informed, at the hospital window, that SUS surgeries are free. Then he interrogated the city’s public prosecutor’s brother-in-law, and waited for the crime to be committed, with the amount being handed over in the form of marked banknotes.
In the Supreme Court High Court, the physician’s defense asserted that the offense would not be passive corruption, but a concussion, with the condition of an undue advantage. The basic difference between the two offenses lies in the type of situation: in law, the act of “request” is criminal conduct, while in the offense of passive corruption the rule speaks of “to ask or receive.” For a physician’s attorney, the presence of a prepared act would also mark an impossible crime.
Another argument was that there were excesses in the number of times the amount was charged. According to the records, on 10/12/2015, the patient returned to the office for the first consultation after surgery and was assigned by the doctor, who said that the payment should be made by 17/12/2015, the date of the withdrawal of the spots. According to the victim, the doctor threatened to “lock” the operation to the other knee if the payment was not made. At the second postoperative consultation, the charge was supposed to be made by the Secretary of Orthopedics.
In his decision, Judge Lewandowski stated that it was the responsibility of the natural judge of the case, if possible, to amend the description of the fact contained in the complaint and assign another legal definition to it at the appropriate procedural moment (Article 383 of the Code of Criminal Procedure). The rapporteur noted that the High Court of Justice, when analyzing the appeal filed there, ascertained that the TJ-PR had sufficiently confirmed the fact described in the complaint and the criminal type of passive corruption, confirming the occurrence of the flagrante delicto.
By rejecting the request to stop the criminal case through the High Commissioner, the minister stressed that this is an exceptional measure, and should not be applied except in the case of clear atypical behavior, or there is a reason to end the patient’s sentence or its absence from the minimum. Evidence of criminal authorship and materiality, which was not verified in this case.
just pay off
In a similar case, the Fifth Committee of the Supreme Court of Justice granted an ex officio writ of habeas corpus to absolve a doctor from a charge of passive corruption for receiving R$2,500 from a SUS patient for using equipment he owned during surgery with the support of the public health system.
The understanding adopted was that the classification of the offense of passive corruption stipulated in Article 317 of the Penal Code required proof that the physician had obtained an undue advantage. This does not happen when there is merely compensation or reimbursement of expenses – as in the aforementioned case – even if the administrative rules regarding his conduct are not complied with. With information from the press office of the Supreme Court.
HC 191.509 (STF)
HC 541.447 (STJ)
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