Summarize

Brazil has very long and capturing history. Even though some of its' cultural heritage-related professions' regulations are as young as 2018, the insight into the structure and rules of this culture-rich country is very useful. ArtLaw.club had an honour to talk to Mr.Daniel Scheiblich Rodrigues, Sao Paulo State Government’s current advisor to the Department of Municipal Affairs, former chief cabinet officer at the Department of Cultural Affairs and former manager of the Tax Incentive Cultural Program.

- Dear Daniel, does protection of cultural heritage form part of your work/routine duties or is it your sphere of personal interest/passion?

During many years, I was responsible for legal, compliance and administrative issues as part of the cabinet of Sao Paulo State Government’s Department of Cultural Affairs, which is the Brazilian governmental organization responsible for the safeguarding and promotion of arts and culture in the largest economic hub in Latin America. A significant portion of the work I did there concerned administrative procedures originated in the Historical Heritage Protection Office and in the Council on Historical, Archaeological, Artistic and Tourism Heritage Protection, which are the state offices that technically examine the objects eligible for listing and decide which of them will be listed on the register of cultural heritage respectively. I eventually became the Department of Cultural Affairs’ chief cabinet officer, which gave me full access to all procedures that had to do with cultural heritage protection in the State of Sao Paulo.

- What is considered to be cultural heritage (or cultural property/monument/object, depending on the definition in your national legislation)?

As defined by the Brazilian Constitution, all assets of a material and immaterial nature, which bear reference to the identity, action and memory of the various groups that form the Brazilian society must be protected as cultural heritage. That includes forms of expression, ways of living, scientific and artistic creations, buildings and spaces intended for artistic and cultural expressions, as well as sites of historical, natural, artistic, archaeological, paleontological, ecological and scientific value, among other things.

- How is archaelogical heritage defined? Is it state-owned only or can it be held in private hands as well?

In Brazil, the knowledge of archaeological techniques was only formally regulated as a profession in 2018. Nevertheless, there is federal legislation dating back to 1961 which defines archaeological and prehistoric heritage as sites of any nature, which bear witness to the Paleoamericans of Brazil, including tombs, graveyards, burial grounds, early examples of ceramics, parietal artwork, inscriptions, human objects and utensils, artificial ridges and mounds, cave dwellings, antique settled places and a variety of things of palaeontological interest. According to the Brazilian Constitution, all prehistoric and archaeological sites are inevitably state-owned.

- Which actions (by private possessors, owners, institutions) are prohibited/restricted in relation to cultural and/or archaeological heritage? Which restrictions might apply to private property?

Prehistoric and archaeological heritage is subject to a special set of restrictions in Brazil, which include prohibitions against destruction, mutilation or even economic use. As for cultural heritage in general, the restrictions depend on the level of protection the object is subject to. Once an object is deemed worthy of safeguard measures by a federal, state or municipal preservation council for its cultural importance–which includes archaeological, artistic, bibliographical, historical, landscape or tourism significance–there may be several adverse effects, such as prohibitions against physical alteration to all or part of a property unless a previous leave is granted, against any change of the character of its use and against its removal from the original location. Third parties are also subject to restrictions, once the introduction of visual elements in the neighboring area of a protected property must not reduce the visibility of that property’s main cultural features; therefore, a previous leave must be granted by the protection council before changes in the neighboring area.

- Is expropriation of private property allowed and in which cases?

No, the expropriation of private properties is not allowed on the grounds of cultural heritage protection. In Brazil, a private property can only be expropriated when it is used for enslavement or cultivation of illegal psychotropic plants. Nevertheless, the Civil Procedural Code assures federal, state and municipal governments–in that order–the right to precedence over private purchasers in case of judicial sale of private properties protected as cultural heritage.

- Are there any mandatory requirements placed upon private owners in relation to cultural heritage protection generally and in case of private ownership of individual cultural objects? If yes, what happens if the private owner is unable to fulfill the mentioned requirements due to objective reasons (lack of money, for instance)?

The most important mandatory requirements placed upon private owners are the maintenance and the repair, which include occasional property renovations and restorations. On the other hand, when private owners lack financial resources for the maintenance or repair of safeguarded cultural objects, they are legally obligated to inform the National Institute for Historic and Artistic Heritage–or the state or municipal council that listed such objects on the official register of cultural heritage–otherwise they will face fines twice as high as the damage costs they are responsible for.

- Which actions are allowed providing the special permission issued by State authorities?

That’s a quite interesting question! Due to the way Brazilian Cultural Heritage Law has developed, it’s easier to say generically which actions are prohibited, instead of those that are allowed. And for that matter the ownership and the use of protected objects are conditioned by statutory limitations that broadly preclude destruction and damage. So, as long as the items of the cultural heritage are not subject to threat of disappearance or deterioration as provided by law, the ownership and the use are allowed regardless of any universal legal regulation. On the other hand, federal, state and municipal preservation councils may impose specific restrictions on the ownership and use of cultural heritage, taking into account the protected objects’ individual features and circumstances. But, if you refer to legal actions that could be taken, there are three possibilities: either one makes a plea for the recognition that the listing on the register of cultural heritage is null and void because of breach of procedure; or the recognition that the protected object is not worthy of being deemed as part of the cultural heritage; or the recognition that the protected object has been so irrevocably deteriorated that it isn’t able to bear testimony to cultural heritage any longer.

- What are the general requirements on export of cultural objects? Is permanent export of cultural objects allowed?

Brazilian federal legislation that dates back to 1937 provides for the export of protected objects only for the purpose of cultural exchange, for short periods of time, and always depending on a leave granted by the National Institute for Historic and Artistic Heritage, which–as I said before–is the Brazilian federal preservation council. In any case, cultural heritage export mustn’t by any means imply its waiver. As the regulatory authority responsible for both listing objects on the register of cultural heritage and enforcing federal legislation, the NIHAH regulated the export in 1992, when it determined that requests for export must be filed ninety days prior to the boarding date and that on no account shall protected objects stay abroad.

- What are the main ways to identify the item to be an object of cultural heritage and, therefore, be subject to special protection rules?

There are theories according to which the mere existence of archaeological, artistic, bibliographical, historical, landscape or tourism significance should be enough for the uprise of adverse effects. Nonetheless, there is a major consensus that only the listing of objects on the official register of cultural heritage could cause restrictions on the ownership and use of such items. Therefore, checking the federal, state and municipal register of cultural heritage is definitely the best way to identify protected objects.

- How is cultural heritage being inventoried?

In Brazil, cultural inventorying is the listing and description of forms of expression and ways of living, without causing the uprise of adverse effects. The federal government keeps the National Inventory of Cultural References, while state and municipal governments may keep their own inventories.

- What kind of liability (administrative, civil, criminal) is foreseen for breach of cultural heritage protection rules?

When the neglect of a property causes its deterioration, the private owner is subject to a minimum six months’ and a maximum one year’s imprisonment, and could also be sentenced to a fine, depending on the case. Although the Brazilian Penal Code, which dates back to 1940, does not stipulate contributory negligence as a criminal action, a statute introduced in 1998, which compiles a great many sorts of crimes and administrative offenses against the environment, lists second-degree illicit action against protected cultural heritage as a crime. On the other hand, undermining the use of protected objects or causing them physical destruction or deterioration are both considered first-degree criminal behaviors by the Brazilian Penal Code and could result in a minimum six months’ and a maximum two years’ imprisonment, besides fines.

- Are there any special cultural heritage protection units (or separate officers) within the law enforcement sector of Brazil?

Brazil is a federation and both the central government and the regional governments–states and municipalities–are free to establish their own preservation councils. The federal agency is the National Institute for Historic and Artistic Heritage. I work for Sao Paulo State Government, whose agency is the Council on Historical, Archaeological, Artistic and Tourism Heritage Protection. In Sao Paulo State’s homonymic capital city, there is the Municipal Council on Historical, Cultural and Environmental Heritage Preservation.

- Can you mention the ongoing or the most memorable recent cases related to protection or recovery/repatriation of cultural heritage?

The most memorable case of cultural heritage protection I took part in was the register of the image of Our Lady of Aparecida. At the time the image was listed on Sao Paulo State Government’s register of cultural heritage by the Council on Historical, Archaeological, Artistic and Tourism Heritage Protection, I was the State Commissioner of Cultural Affairs’ advisor on legal issues and deputy chief cabinet officer. Besides assuring all legal and administrative procedures had been strictly followed before the Commissioner could make his decision, I was responsible for writing the declaration which caused the image to be listed on the register of cultural heritage. Our main concern was how to strike a balance between the adverse effects of the register and the liturgical aims of the image, so we decided that, despite the statue’s fragility, the Catholic Church was allowed to proceed with the ceremonial use of the image in public, considering Catholics deem her as the patron saint of Brazil. At the end of the day, restrictions cannot shatter the main purpose of cultural heritage: its cultural use.