Diversion of SUS funds already incorporated attracts federal competence

The funds transferred by the Unified Health System (SUS) to states and municipalities, although incorporated by them, are still federal. Therefore, they attract interest from the Union in their application and destination. Therefore, any deviations must be judged by the Federal Court.

Diversion of SUS funds destined for states and municipalities does not remove the interest of the Union and federal competence

Marcello Casal Jr./Agência Brasil

With this understanding, the 5th Panel of the Superior Court of Justice granted the appeal in Habeas Corpus filed by the defense of an investigated for embezzlement of funds from the social organization IBGH from the SUS to the prefecture of Aparecida de Goiânia (GO).

With the decision, the STJ recognizes the incompetence of the 1st Court specializing in crimes of criminal organization and money laundering in Goiânia (GO) to process and judge the case.

The 5th Panel also defined that acts and evidence already produced are not automatically considered void. As they have been authorized by an apparently competent court, they may or may not be validated by the Federal Court, at the appropriate time.

With the decision, the STJ consolidates the broad orientation according to which the embezzlement of funds from the SUS falls within the competence of the Federal Court, in view of the duty of inspection and supervision of the federal government.

This understanding also applies to cases in which the transfer of funds is made in the “fund-to-fund” mode — when funds leave federal funds for state or municipal funds, and then be applied.

Even if the diversion takes place when this amount is already incorporated into the state or municipal coffers, the Union’s interest in the application of these funds remains and, consequently, the competence of the Federal Court to judge eventual crimes involving them.

“Despite recognizing the incompetence of the State Court, I understand that the procedural acts must be evaluated by the competent court, so that it can decide whether or not to validate the acts performed so far”, added the rapporteur, Minister Ribeiro Dantas.

“It should be noted that, in this Superior Court of Justice, the applicability of the Apparent Judgment Theory to ratify precautionary measures in the course of the police investigation when authorized by an apparently competent Court”, he added.

RHC 156,413

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