O direito de defesa do proprietário no procedimento de inventário do pratrimônio cultural: estudo do caso da Lei nº 1.432/2010, do município de Piranga/MG

Abstract

Throughout time, the right to property has undergone innumerous transformations, going from absolute right to relativized right, under the prism of collective and social interest, perspective in which the State started to intervene in this right, including for the protection of the cultural heritage. In Brazil, since 1937, there have been norms that refer to the State the duty of protecting cultural heritage. However, it was the Federal Constitution of 1988, in Article 216, § 1, that constitutionalized the means of protecting cultural heritage, among them the inventory. However, to date, there is no federal rule that regulates its procedure, so that local laws, concurrently, legislate on the subject. This absence of a federal law prevents the standardization of the procedure, which generates legal uncertainty, especially with regard to the effects of the inventory on the inventoried property and, consequently, to whether or not the owner is assured the right of prior defense. In order to study the inventory procedure in the legislation, it was decided to conduct a case study of the local law, Law 1.432/2010, of the Municipality of Piranga/MG. Art. 27 of this Law provides that, once inventoried, only with the authorization of the body responsible for the inventory may the owner of the property destroy, render unusable or alter it. Thus, this work analyzed the effects of the inventory on the property right and on the exercise of the faculties of ownership, given the legal limitations instituted in the municipal legislation. With this, it was sought to assess whether, in the procedure of inclusion of the property in inventory, the owner should be assured of his participation, with full exercise of the right to adversary proceedings and to ample defense, corollary of the due process of law, assured by article 5, item LV, of the Constitution of the Republic of 1988. The theme was explored from a legal-dogmatic standpoint, since the internal elements of the legal system were studied. In the same way, by means of legal-comprehensive research, the procedure for including an asset in the protection of a cultural heritage inventory was questioned, with the analysis of secondary data extracted from bibliographical research on the theme and the legislation, in a monodisciplinary way, with the intention of making a qualitative analysis of the data. The conclusion obtained, without going into the question about the legislative competence of the municipality to impose the same effects on the inventory as those resulting from the tombamento, is that in the case of Law No. 1.432/2010, the owner's right of defense and broad participation must be ensured throughout the aforementioned procedure, notably because, once the property is affected, its destruction, destruction or alteration will not be allowed without the prior authorization of the public entity, which configures a restriction on the right to property, making the aforementioned rule unconstitutional.