O direito à proteção do patrimônio cultural religioso: uma análise comparativa entre Brasil e Itália a partir da teoria dos direitos fundamentais de Robert Alexy

Abstract

This dissertation addresses the legal protection of the Brazilian religious cultural heritage, considering the interaction between norms of Cultural Heritage Law, Constitutional Law and International Law, to analyse the possibilities of State action in the protection and promotion of cultural assets of religious interest. In this sense, the objective is to discuss the legal concept of “religious cultural heritage”, to differentiate it from other types of heritage and to highlight its “living” nature, linked to religious practices and identity. In addition, based on Robert Alexy's Theory of Constitutional Rights, the existence of a fundamental right to the protection of religious cultural heritage per se is examined, as well as the compatibility of the duties arising from it with the Brazilian Federal Constitution of 1988, in view of the confrontation between the principle of State secularism and the duty to promote religious diversity. In addition, the protection regime currently adopted by Brazil is also investigated, accompanied by a study of the Italian legal system, which provides specific mechanisms for the protection of religious cultural heritage, in search of examples of good practices that can be incorporated into Brazilian Law. To this end, an extensive systematic review of the literature was undertaken, in a multidisciplinary discussion with an emphasis on the Brazilian, international and Italian legal literature, highlighting the work of Robert Alexy, Davide Dimodugno, Mircea Eliade, Nathalie Heinich, Sven Peterke, Ingo Wolfgang Sarlet and Theodosios Tsivolas, accompanied by the analysis of the pertinent normative complex (domestic, foreign and international) and paradigmatic jurisprudential cases. From this, it is concluded that the recognition of sacredness as a value to be protected by the Cultural Heritage Law and the formalization of agreements between States and religious entities are strategies for the protection of religious cultural assets. The harmony between the protection of religious cultural heritage and an inclusive state neutrality is evidenced, which, to promote religious plurality, respects the specificities of these cultural assets, without compromising constitutional principles essential to the guarantee of democracy and equality.