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INTRODUCTION
The Brazilian legal and criminal system has innumerable crimes that require the author to be a public official (special crimes) and, due to this quality, present punitive asymmetry (that is, punish with disproportionate severity compared to objectively identical conduct), but practiced by people who do not have that quality)[1]. This causes the movement of jurisprudential expansion of the penal concept of “public official” in the Brazilian context, to demand from the doctrine efforts to reduce arbitration in the interpretation of art. 327 of the CP.
In view of the plurality of problems, this work will focus on examining the following point: the doctor who attends the SUS must be considered a public official for criminal purposes, according to the terms of art. 327 of the CP? The discussion is not new. It is known that the Supreme Federal Court established the understanding that (i) the private physician directly accredited to SUS must be considered a public official in light of the expression “public function” of art. 327, caput, CP[2] and that (ii) the doctor who works in a hospital accredited by SUS must only be qualified as such after Law 9.983 / 00, which transformed the only paragraph of PC 327 into § 1 and expanded the category of public official into comparison[3].
However, four reasons justify the resumption of the debate. First: The solution found by the STF is not consistent. Monday: Over the years, there has been an exponential increase in the use of Social Health Organizations (OSS) within the scope of SUS. Third: A new draft of the Penal Code (PLS 236/2012) is being processed, which changes the penal concept of officials. Fourth and last reason: SUS’s role in coordinating public and private actions to combat COVID-19 will bring[4]from the point of view penal, new challenges within the scope of the already heated discussion on the status of public official for criminal purposes of the “doctor who cares for SUS”.
An expression commonly used in jurisprudence, however, encompasses groups of professionals with very different ties to the public power, namely: (i) there are doctors who attend SUS because they have a direct link with the Public Power, which can happen in two hypotheses: (hypothesis A) when you are an employee of a public hospital and (hypothesis B) when the private doctor is direct and personally accredited to SUS; (ii) doctors who attend SUS because they have a indirect link with the Public Power (bond negotiated by a legal entity external to the State), which can happen in two other hypotheses: (hypothesis C) when you work in a private hospital that, in turn, is affiliated with SUS or (hypothesis D) when the administration of a public hospital is delegated to a health operating system that, in turn, hires doctors directly and without public bidding, who begin to assist the respective hospital through SUS.
1. DIRECT LINKS BETWEEN THE DOCTOR AND THE PUBLIC ADMINISTRATION (ART. 327, CAPUT CP)
Whenever it is intended to examine the official status of a doctor who has a straight with the direct or indirect public administration, one must resort to caput of art. 327 of the Penal Code, since this is the most coherent interpretation of the 1988 Constitution (especially in light of its articles 37, caputand inc. Me[5])
paragraph 1 of Art. PP 327 should be reserved for examining a situation where there is only one link hint between the doctor and the Public Administration. This separation is nothing new: the reading and interpretation of the decision of RHC 90.523 of the STF and the subsequent decisions within the Superior Courts allow us to infer that they also make use of the distinction between direct and indirect ties between the doctor and the Public Power (SUS) and give them autonomous frameworks within the scope of art. 327 of the CP.
1.1 HYPOTHESIS TO: THE PHYSICIAN EMPLOYEE IN A PUBLIC HOSPITAL WITH SUS SERVICE
In this hypothesis, the link between the doctor and the public administration will depend on the legal form chosen by the government to decentralize the health service. It is possible that the public hospital is a teaching hospital and, as such, a mere organ of a public university; it is an autarky or, exceptionally, a public company or a mixed capital company.
Therefore, the doctor’s direct link with said hospitals will be by filling out a form. public office (legal guarantee of public law) or completing a form public employment (private bond based on the law), and therefore, a priori framed in caput of art. 327 of the Penal Code, formally integrates the state apparatus.
However, the framework still requires an analysis of the nature of the activity carried out by the agency and the legal regime that is applicable to it.[6]. In the case of a public health service, organized in the figure of SUS, the regime is public Law[7], its own brand of typical public administration activities, confirming the status of public official.
1.2 HYPOTHESIS B: THE PERSONAL DOCTOR AND DIRECTLY ACCREDITED TO THEIR
In this case, the doctor’s contract cannot be classified as part of a public office or work, since it is a mere service provider contracted by the Public Authority (private contract without an employment contract), which it receives by the procedure performed, and as such it remains external to the state apparatus. According to the interpretation of the Supreme Federal Court, the doctor in this situation would also be qualified as an official to exercise a “public function” (art. 327, caput, CP). However, the answer to the problem logically presupposes that the content of the expression “public function” is defined.
Courts, in the criminal sphere, generally interpret it very broadly, arguing that the legislator wanted to give maximum protection to the public administration.[8]. However, both the argument and its consequence, the vast meaning given to the term, are wrong. There is no reason to suppose that the legislator intended, and even if there were, the legislator’s will is not an important argument for the purposes of interpreting a criminal law.
On the contrary, in the criminal sphere, essentially restrictive of the fundamental rights of freedom, the interpretation must obey the semantic limits of the term (maximum sense of the word), to avoid any risk of incriminating analogies. Furthermore, in the case of the expression “civil service”, the legislator chose a term “borrowed” from other branches of law, administrative and constitutional, and did not give it its own definition, which is why it should be used in its traditional sense. and not inaugurate a new meaning.
Based on this premise, it is necessary to look for the meaning of the term in the branches of origin, with its best understanding reached for two reasons. First: the civil service category, in the caput of art. 327 of the CP, is residual in relation to those of public office and employment and only needs to be activated when it is not possible to adjust the issue in the above terms. Second: civil service it is a category whose meaning is best achieved by its opposition to the category public service, since they are the two typical activities of the public administration, both subject to a regime of public law[9].
Although the notion of public service comes closer to the idea of a set of public powers, that is, of powers with a strong state brand, capable of creating, modifying and extinguishing the rights of citizens, the idea of public service comes closer to the notion of benefits Materials intended to improve the quality of life of citizens.[10], the notion of state power is very rarefied.
In view of this, the term “civil service” in the caput of art. 327 should be interpreted as a residual link public Law between the State and an individual external to it, through which public powers are delegated, that is, powers accompanied by typically state coercivity. This definition was adopted by the Federal Supreme Court in the field of Administrative Law (“notarial and registry services” case), when defining the notion of civil service delegate, strictly distinguishing it from the notion of public service delegate.[11]. It is this concept of civil service that, in accordance with the aforementioned limits of interpretation, it must prevail over the others.
That said, the private doctor directly accredited to SUS is not a delegate of the public function, but of the public service, since such public powers are not granted, but only the material skills necessary to provide a public service to the community, which is why its formulation of the term “civil service” is, at the very least, highly questionable. Apparently, the Judiciary has been trying to frame this hypothesis, with interpretative juggling, in the three expressions available in the caput of art. 327 of the PC, when the correct thing would be to admit its insufficiency, accept the punishment gaps and ask the legislator to reorganize the concept in light of the difficulties faced by the courts, as demonstrated by the experience of German and Italian criminal law.[12].
Therefore, for a correct and safe framework, it would be necessary lege ferenda add to caput of art. 327 an expression similar to the following: an official is considered for criminal purposes that, without exercising office, work or public office, you are personally responsible for providing public service.
2. INDIRECT LINKS BETWEEN THE DOCTOR AND THE PUBLIC ADMINISTRATION (ART. 327, § 1, CP)
The de facto situations of this group include “indirect ties”, that is, the relations between the doctor and the Public Administration that are mediated by a legal person. external to the state apparatus, which has a direct link to the state. In these cases, as already defended, the concept of public official by comparison, reserved for people who do not have direct links with public authorities (§ 1 of article 327 of the CP).
2.1 HYPOTHESIS C: THE DOCTOR WHO WORKS IN A PRIVATE HOSPITAL SUITABLE FOR HIS
As explained above, it will start with the premise that the STF defined that the doctor who works in a private hospital affiliated with SUS can only be considered a public official in comparison after Law 9.983 / 00, when the expression is included “Who works for a service provider company hired or hired to carry out a typical activity of the Public Administration” to § 1 of 327 of the CP. However, a hypothesis C framework, now examined, in this device seems unworkable. Explain to yourself.
There are two central expressions for the interpretation of paragraph 1: “company“AND”typical public administration activityAs for the latter, the difficulty of its interpretation comes from the fact that, originally, in PL 933/99 (which gave rise to Law 9.983 / 00), the change foreseen in the wording of article 327 was much more modest, since the then constant expression was “typical social security activity.” The original wording was explained by the context of PL 933/99, which typified conduct against Social Security (art. 168-A, 312-A , 337-A) However, one of the amendments to the Project changed the expression to “typical activity of the public administration”, text the one that ended up approved without any context[13].
Whether we like it or not, it is with the expression “typical activities of the public administration” that one needs to work. It is argued, therefore, that its meaning is linked to the two facets of state activity: the public function and the public service. These are typical public administration activities, provided they are provided under a public law regime. Applying such an idea about the health service provided by the private hospital associated with SUS, it can be argued that it is, rather, a typical activity of the public administration, even in cooperation with private ones.
However, this first conclusion is not enough to solve the hypothesis C, since its inclusion in the second part of § 1 of 327 of the CP also requires the examination of the term “company”. When it is verified that the penal legislation did not give this term its own or specific meaning, the interpreter must adhere to the technical sense consecrated in commercial law, which generally comes close to the idea of ”organized economic activity, for the production or circulation of goods and services”[14]. Therefore, it is necessary to be an entity organized in a business manner and to exercise a economic activity (inseparable from the idea of benefit), therefore, it cannot be organized as a non-profit or philanthropic legal entity.
Having said this, it will only be possible to affirm that the doctor in hypothesis C fits the concept of civil servant by equation if the hospital private sector for which it works and that SUS is associated with the adoption of some business form, the exercise of economic activity for profit Taking into account that most of the private hospitals in Brazil no it adopts the entrepreneurial form, nor does it have profitable purposes, being philanthropic entities, even by constitutional preference for purposes in accordance with the SUS (art. 199, CF), there is no way to justify, without resorting to analogy, its setting under the terms “company” Agreed to exercise the “typical activity of the public administration” (§ 1, art. 327, CP).
The choice of the legislator in the diction of art. 327 of the PC generated a phenomenon of under-inclusion of concrete situations in the factual support of the legal norm, because the word company it is too specific for the phenomenon it apparently intended to regulate. Therefore, the legal norm of the second part of § 1 of art. 327 of the CP is To who of the intended guardianship purpose, which Explain but in no way justifies, The insistent use of analogies by the courts in order to expand the jurisprudence of the criminal concept of officials. As already mentioned, it would be more honest to accept the punishment gaps and, therefore, ask the legislator to reorganize the concept, using terms that include legal entities. non-profit.
2.2 HYPOTHESIS D: THE DOCTOR HIRED BY YOU, WHICH MANAGES THE PUBLIC HOSPITAL WITH ITS SERVICE
The last and most controversial situation refers to the doctor hired by the Social Health Organization, who is, in turn, the manager of the “white coat” (that is, of the services with direct contact with patients) of a public hospital that offers care through SUS. . In this case, the doctor is an SO employee or service provider, not the public hospital.
To verify if the doctor in this situation considers himself a public official for criminal purposes, it is first necessary to qualify the YOU who hired the doctor and who runs the hospital in light of art. 327 of the CP. From the beginning, any possibility of including such entities in the second part of § 1 of art. 327 of the CP, since it is “company” and the absence The purpose of the profit is precisely one of the constituent elements of the operating system, by express legal determination[15].
The first part of §1 of art. 327 of the PC (“It is equivalent to an official who occupies a position, job or function in a parastatal entity”), the subsumption depends on the meaning given to the expression “parastatal entity” that, despite being historically controversial, may have two possible meanings: (i) sense genetics or original and (ii) sense stream or evolutionary.
The sense genetics or original The term “parastate” was very close to the notion of “indirect public administration” (autarchies, mixed capital company, public company, etc.), although it already included the new figures of the “System S” (SESI, SENAI, etc. ).[16]and context the main discussion about the unnecessaryness of public companies and mixed capital companies, while para-state, to make tenders[17].
The 1988 Federal Constitution represented a radical change in the structure of the Public Administration and the term “parastatal” made sense. stream administrative doctrine, which uses it to designate the activities of the third sector, that is, those non-profit legal entities external Direct or indirect public administration, but who can collaborate with it and receive public resources from it to carry out activities of public interest.[18]. So it seems untenable to continue using sense original of the parastatal term.
It cannot be ignored that §1 of art. 84 of Law no. 8.666 / 93 offers a legal concept for the term very close to the mentioned “original meaning”[19]. However, its adoption is not capable of refuting the conclusion that one should use the concept current because the two purposes of Law 8.666 / 93 when said meaning is used for the term para-state – (a) to reinforce that such entities of the indirect Administration are, yes, subject to the bidding rules and (b) to propose a concept of active subject of bidding offenses close to the concept of the Penal Code – allow to conclude that, in reality, said law, despite being powder 1988 uses a term with meaning preconstitutional
It is evident that, in the case of restrictive (incriminating) rules, the use of the evolutionary argument in legal interpretation must be done with great parsimony, since it can mean a new, unexpected and expanded criminalization, although without changing the text of the law.
The problem is that the new constitutional order seems, in fact, to have drained the previous meaning of the term para-state, which requires updating its meaning to cover Third Sector entities, especially the “System S”, Civil Society Organizations and Organizations of Public Interest, just as the STF did in the case of the “Instituto Candango de Solidariedade”. In this paradigmatic case, the STF definite that a social organization would be para-state, with its subsequent subsumption in the first part of § 1 of art. 327 of the CP.[20].
However, updating the term para-state In order to understand the operating system, it is not automatically concluded that the doctor hired by them who cares for SUS should be considered a public official. This is because the STF decision in the “Candango case” was issued in the context of an accusation of embezzlement, to the extent that said operating system allegedly embezzled the funds of the administration contracts with the District government. Federal.
Therefore, it can be deduced that it is not the condition of acting in a parastatal itself that makes someone a public official for criminal purposes., but something else[21]. And it is precisely this “something else” that still needs to be adequately clarified by the Judiciary. Would it be (i) the management and administration of funds of public origin or would it be (ii) the exercise of some type of public power? The fact is that the doctor in the circumstances of the hypothesis D in principle, it does not meet any of these elements, since it is only someone in charge of the public service.
3. THE CRIMINAL CONCEPT OF THE PUBLIC OFFICER PROPOSED IN PLS 236/2012 AND THE FRAMEWORK OF THE DOCTOR WHO CARES FOR HIS
In view of the difficulties of qualification, in light of the current wording of art. 327 of the PC, of the hypotheses listed above (especially the situations B, C and D), it is important to verify if the new wording for the criminal concept of public employee presented by PLS 236/2012 (New Draft Penal Code) would exceed them. After the amendments, the PLS defines a public official for criminal purposes as follows:
Art. 292. A public official is one who, even if temporarily or without remuneration, occupies a post, job, public function or elective mandate.
1º It is equivalent to an official who occupies a position, job or function in an autarky, a public company and a mixed capital company and who works for a contractor, contracted service company or by any other means responsible for the execution of an activity. typical of the public administration or legislative and judicial powers.
2º The person responsible for organizing civil society or non-governmental organizations in the management of public resources is also equated with a public official.
3 The concept of public servant applies to both the active and the passive subject of crimes.
The proposed new wording does not solve the main problems facing the courts regarding the hypotheses B, C and D of this work First, the caput continues to ignore the situation of those who, without exercising a public function, are personally responsible for carrying out a public service (problem of framing the hypothesis B)
Second, the term “parastate” is only replaced by terms that refer to its genetic sense, which makes the first part of §1º superfluous, covering situations already qualified in the caput. Third, the new wording maintains the word exclusively company mention the situation of a contract or agreement with the Government to carry out a typical activity of the Public Administration, without solving the problem of hypothesis C.
Fourth, the proposal makes it clear that the “head of civil society or non-governmental organization”, in the management of public resources, would be an official by equation (§2, art. 292, PLS 236/12, substitute), which would exclude the doctor in hypothesis D of the concept, because the rule It seems confer quality only to the “managers” of the referred entities and in the case of driving of public resources. However, there is no certainty because the term “responsible” is vague and ambiguous.
Finally, fifthly, the proposal loses an excellent opportunity to contribute to greater legal certainty regarding assimilation possibilities, providing the evident incapacity of the current concept of public official. guide conduct, so that the people affected can predict the intensity of their possible criminal liability.
Final thoughts
In view of the above, it is concluded: (i) in hypothesis A, it is safe to recognize the doctor as a public employee in light of art. 327 of the CP; (ii) in the hypotheses B and C the subsumption of the facts to art. 327 of the CP requires the use of the incriminating analogy, generating an invalid expansion of the criminal concept of a public official through the jurisprudential route; (iii) in the hypothesis D, the subsumption of the facts to art. 327 of the CP depends on the meaning attributed to the term para-state and its combination with material criteria still poorly defined by the courts, with strong legal uncertainty; (iv) it is necessary to clarify the dark points of the discussion, under pain of metaphorically The intensity of the risks of criminal responsibility of these professionals is less known to them than the intensity of the risks of facing the pandemic.
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[1] As an example, compare the sanctions of art. 168 and 312 of the Penal Code. [3] STF, HC 83.330-8, 1st Turma, Rel. Minister Marco Aurélio Mello, public. at the DJ on 04/30/2004; STF, HC 87.227, Second Class, Full Minister Ellen Gracie, public. at the DJ on 04/20/2006; STF, HC 97710, 2nd class, Rapporteur Min. Eros Grau, public. in DJe on 04/30/2010 and STF, ED in HC 97710, first class, Rel. Ministro Barroso, public. at the DJe on 10/23/2013. [4] There are many people who now work for SUS, including those with temporary and emergency ties, as well as many requests for goods and services from individuals or legal entities that the Government has already made to face the current health crisis. Even requisition integral of goods and services of private persons is already the subject of action in the STF at the time of the pandemic, that is, in ADPF 671. [5] In the context of the current constitutional order, when it comes to Work title or civil service, there is talk of Direct and Indirect Administration (MELLO, Celso Antônio Bandeira de. Administrative Law Course. 26. ed. São Paulo: Malheiros, 2009, p. 250 ss). In the opposite sense, that is, considering that the links with indirect public administration must be framed in the first part of §1 of art. 327, CP, cf. GALVÃO, Fernando. Criminal law. Crimes against public administration. Belo Horizonte: D’Plácido, 2015, p. 29 ss; RASSI, João Daniel. Public administration in the organic sense and the penal concept of public official – Contribution to the study of article 327 of the Brazilian Penal Code. In: CRESPO, Marcelo Xavier de Freitas. Crimes against the public administration: controversial aspects. São Paulo: Quartier Latin, 2010, p. 20 ss. [6] See SCALCON, Raquel. The criminal concept of civil servant in Brazilian and German legislation: a proposal for a restrictive interpretation of the term public employment in state-owned companies (article 327, caput, of the CP). In: Criminal Studies Magazine, São Paulo, n. 72, 2019, p. 120 ss) and RASSI, João Daniel. Public administration in the organic sense and the penal concept of civil servant, op. cit. p. 24) [7] On the legal-administrative or public law regime, see. MELLO, Celso Antônio Bandeira de. Administrative Law Course, op. cit., p. 69 ss and JUSTEN FILHO, Marçal. Administrative Law Course, op. cit., p. 56 ss. [8] This idea was recently reaffirmed by the STF in HC 125086 AgR, Rel. Min. Celso de Mello, 2nd class, public. at the DJe on 11/27/2018, p. 3) [9] In a similar sense, Pagliaro and Costa Júnior refer to “there are public services that are not public functions” (PAGLIARO, Antonio; COSTA JÚNIOR, Paulo José da. Of crimes against public administration, op. cit., 1997, p. 23) German administrative doctrine differentiates between intervention administration and installment administration (Eingriffs- und Leistungverwaltung), that is, the power of the state versus public service (EHLERS, Dirk; PÜNDER, Hermann (Org.). Allgemeines Verwaltungsrecht. 15. ed. Berlin: De Gruyter, 2016. p. 39 ss). The same distinction appears in Italian doctrine in MANES, Vittorio. Servizi Pubblici and Diritto Penale. L’impatto delle liberalizzazioni sullo statuto penale della pubblica amministrazione. Torino: G. Giappichelli Editore, 2010, p. 16 ss and SESSA, Antonino. Infedeltà and Oggetto della tutela nei reati contro la pubblica amministrazione. Napoli: Edizioni Scientifiche Italiane, 2006, p. 102 ss. [10] On the concept of public / state authorities, see SESSA, Antonino. Infedeltà and Oggetto della tutela nei reati contro la pubblica amministrazioneop. cit., p. 106, note 95). In Brazilian legislation, Bandeira de Mello says that legitimacy passive in an order of mandamus (coercive authority) it is a symptom of the exercise of public powers and, therefore, of the public function (MELLO, Celso Antônio Bandeira de. Administrative Law Course, op. cit., p. 245). [11] STF, ADI 2415, Plenary, Rel. Minister Ayres Britto, by majority, public. in the DJe on 09/22/2011, on pages 4-6 of the vote. [12] The German Penal Code (StGB), for example, realized the difference between exercising public office and being in charge / assigned to provide a public service and created a residual clause in § 11 Abs. 1 Nr. 2 Buchst. c StGB. The Italian Penal Code also differentiates those who exercise public functions (pubblica funzione – art. 357) who is in charge of a public service (Person incarnate of a public service – art. 358). [13] Returning to PL 933/99, which gave rise to Law 9.983 / 00, it seems that the change foreseen in the wording of art. 327 was much more modest, since the then constant expression was “typical social security activity”. The original wording was explained by the context of PL 933/99, which typified conduct against Social Security (art. 168-A, 312-A, 337-A). However, one of the amendments to the Project changed the expression to “typical public administration activity”. [14] WARDE JÚNIOR, Walfrido Jorge. General theory of the company. 2. ed. São Paulo: RT, 2018, p. 144 and COELHO, Fábio Ulhoa. Commercial Law Manual. 25. ed. São Paulo: Editora Saraiva, 2013, p. 34 ss. [15] See art. 1 of Law 9.637 / 98 (OS Law). [16] Illustratively, see RE 35242, Rel. Min. Luiz Gallotti, 1st Turma, public. at the DJ on 05/29/1958; HC 44729, Rel. Min. Aliomar Baleeiro, 2nd class, public. in DJ 12/20/1967 and CJ 3498, Rel. Min. Adaucto Cardoso, 2nd Turma, public. on DJ 09/13/1968. This understanding lasted for a time in the STF, even in the context of the new constitutional order, as noted in RE 159228, Rel. Min. Celso de Mello, first class, public. at the DJ 10/27/1994. [17] See MEIRELLES, Hely Lopes. Tender in parastatal entities. Administrative Law Magazine, Rio de Janeiro, n. 132, p. 32-40, January / June. 1978, p. 35 ss .; MEIRELLES, Hely Lopes. Municipalities and parastatal entities. In: SUNDFELD, Carlos Ari; DI PIETRO, Maria Sylvia Zanella (Org.). Essential doctrines of administrative law. Indirect public administration and regulation. São Paulo: Revista dos Tribunais, 2013. p. 159 ss. Text originally published in 1962. [18] MELLO, Celso Antônio Bandeira de. Administrative law courseop. cit., p. 1058 ss. and DI PIETRO, Maria Sylvia Zanella. Parastatal entities and collaborating entities. In: MODESTO, Paulo (Coord.). New Brazilian administrative organization: studies on the proposal of the Commission of Experts constituted by the Federal Government to reform the Brazilian administrative organization. Belo Horizonte: Foro, 2009, p. 227 ss. [19] Art. 84, §1º. “Es equivalente a un servidor público, a los efectos de esta Ley, que ejerce el cargo, el trabajo o la función en una entidad paraestatal, por lo que considera, además de fundaciones, empresas públicas y empresas de capital mixto, las otras entidades bajo control, directas o indirectas, Poder público “. [20] Las siguientes decisiones del STF se destacan en el “caso Candango”: HC 131672 AgR, Rel. Min. Rosa Weber, primera clase, público. no DJe em 16/10/2018 e STF, HC 125086 AgR, Rel. Min. Celso de Mello, 2ª Turma, public. no DJe em 27/11/2018. Ver ainda, no âmbito do STJ, o paradigmático AgRg no HC 447.053/DF, Rel. Min. Maria Thereza de Assis Moura, 6ª Turma, public. no DJe em 01/06/2018. [21] Sob o ponto, ver SCALCON, Raquel Lima. Entidades do terceiro setor e o crime de peculato. Reflexões à luz do caso “Candango” (Brasil) e do caso “Regina Pacis” (Itália). JOTA, 28. ago. 2019 (Disponível em
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