Judge Ricardo Lewandowski of the Federal Supreme Court dismissed a habeas corpus order in which the defense of the orthopedic doctor requested the stay of the criminal case responsible for the offense of passive bribery, for allegedly performing surgeries on the unified health system (SUS). ).
At the invitation of the SUS, the doctor was arrested for this act and denounced by the Ministry of Public Affairs of Paraná for having charged R $ 4,600 to a woman for a knee operation at the Bom Jesus hospital in Toledo (PR ). After borrowing money from her daughter-in-law, she is informed, at the hospital window, that SUS surgeries are free. Then he questioned the city attorney’s brother-in-law and waited for the crime to be committed, the amount being given to him in the form of marked tickets.
Before the Supreme Court of the Supreme Court, the doctor’s defense asserted that the offense would not be passive bribery, but a concussion, with the condition of an unfair advantage. The fundamental difference between the two offenses lies in the type of situation: in law, the act of “asking” is criminal behavior, while in the offense of passive bribery, the rule speaks of “asking or receiving”. For a doctor’s lawyer, the presence of a prepared document would also mark an impossible crime.
Another argument was that there had been excesses in the number of times the amount was billed. According to the records, on 12/10/2015, the patient returned to the office for the first consultation after surgery and was assigned by the doctor, who indicated that payment should be made by 12/17/2015, the date of removal of stains. According to the victim, the doctor threatened to “lock” the operation on the other knee if the payment was not made. During the second postoperative consultation, the charge was to be made by the orthopedic secretariat.
In his decision, Judge Lewandowski indicated that it was for the natural judge of the case, if possible, to modify the description of the fact contained in the complaint and to give it another legal definition at the appropriate time of the proceedings (Article 383 of the Code of Criminal Procedure). The rapporteur noted that the High Court of Justice, when analyzing the appeal lodged therein, found that the TJ-PR had sufficiently confirmed the fact described in the complaint and the criminal type of passive bribery, confirming the occurrence of flagrante delicto.
By rejecting the request for the termination of the criminal case through the intermediary of the High Commissioner, the Minister stressed that this is an exceptional measure, and that it should only be applied in the event of manifestly atypical behavior, or if there is a reason to end the patient’s sentence or lack of the minimum. Proof of criminal paternity and materiality, which was not verified in this case.
In a similar case, the Fifth Committee of the Supreme Court of Justice ex officio granted a habeas corpus order to absolve a doctor of a charge of accepting bribes for having received R $ 2,500 from a patient at SUS for have used the equipment they owned during surgery with the support of the public health system.
The interpretation adopted was that the qualification of the offense of passive bribery provided for in article 317 of the Penal Code required proof that the doctor had obtained an undue advantage. This does not happen when it is simply a matter of compensation or reimbursement of expenses – as in the aforementioned case – even if the administrative rules regarding his conduct are not followed. With information from the Supreme Court press office.
HC 191.509 (STF)
HC 541.447 (STJ)