Demolition of the Zelensky estate and protection of cultural heritage. Why did the Ministry of Culture bring back the rules of Yanukovych’s time?
A scandal broke out in the capital over the weekend. The Zelenskys’ estate, which Kyiv residents were trying to preserve, was demolished.
Kyiv Mayor Vitaliy Klytschko called the incident a “cynical provocation.”
He noted that the relevant department of the Kyiv City State Administration had sent documents to the Ministry of Culture a few days before to protect the building and grant it the status of a monument.
Klitschko noted that activists came to the city hall and staged protests.
The response from the acting Minister of Culture Rostyslav Karandeyev was short in coming. He called these false accusations.
The demolition of the Zelensky estate is a reason to look at the problem of protecting cultural heritage more broadly. The enemy is trying to destroy Ukraine’s history and cultural heritage. Therefore, the protection of monuments is one of the pillars of national security and the preservation of national identity. When a developer with a Russian background was destroying the Flowers of Ukraine building in the center of Kyiv, Kyiv residents managed to protect it. They made sure to grant the building the status of a monument. The Ministry of Culture helped, but other rules applied back at the time.
The public has always played a key role in the process of protecting monuments. Thus, this spring, an order was issued that deprived citizens of the right to protect cultural heritage. The Ministry of Culture was allowed to adopt this policy by the Ministry of Justice and the State Regulatory Service. The latter, we recall, covered up the clone resolution of the urban planning “reform” 5655. This was necessary for developers, who, by the way, often find cultural heritage to be a hindrance to their business projects, and so the prosecutor’s office has been defending Pyrohiv, Kitayiv, the Museum of Outstanding Ukrainians, and Literary Garden in courts for years. (These cases raise serious questions for Kyiv City Council members and the position of the city government in courts.)
The new procedures approved by the Ministry of Culture carry corruption risks. Here, government officials have ignored the State Anti-Corruption Program and the requirements for public consultations when creating such documents. The NACP should respond to this.
The Holka civic initiative studied the new government policies on cultural heritage and found out that the government has returned to the playbook that was approved during the Yanukovych era.
When a building is listed in the State Register of Immovable Monuments of Ukraine, it is a criminal offense if someone destroys it. Moreover, the owner must protect such a building. This is stipulated by the law “On Protection of Cultural Heritage”.
As soon as the developer finds out that a building may be granted the status of a monument, it can be quickly demolished. Then there will be nothing to enter in the Register and instead of a historic building, there will be some commercially viable real estate. This is exactly what happened to the Flowers of Ukraine in the center of Kyiv. Shortly before the building was included in the Register, the facade was destroyed.
To prevent this from happening, there is a special status of “newly discovered cultural heritage site”. It allows the building to “survive” until the necessary procedures are completed and the building is included in the State Register of Monuments. During this interim period, the building is included in a special list. And its destruction is then also subject to criminal liability.
The procedure in such cases should be as simple and quick as possible. However, not every historical building has significant cultural value to be granted the status of a monument. Therefore, there is a risk of abuse of the banal extortion of owners of ordinary historical buildings.
This is why it is necessary to set strict deadlines for the cultural heritage protection authorities that prepare documents for consideration of the issue of adding an object to the Register.
When the Ministry of Culture decided to change the Soviet rules 11 years ago, it approved a new procedure that did not provide for public participation in such processes. At the same time, the public had the opportunity… to achieve the exact opposite – to remove the protected status from the building. We can assume that this loophole was left in the interests of developers who could find the “right public” to initiate the removal of the monument status from the desired object.
A real revolution took place after the 2019 presidential election, when the Ministry of Culture, under Prime Minister Volodymyr Groysman, approved a new version of the Procedure. This is when the public finally had a say in the matter of adding an object to the List and granting the status of a newly discovered cultural heritage site. The list of documents that had to be submitted for this was reduced to a minimum. It was only necessary to have a photo of the object and a historical certificate signed by a person with a degree in the relevant specialty (art history, architecture, history, etc.).
The application could be rejected only if there were no documents or if the historical certificate did not contain any justification for the authenticity of the object or its value.
But there was a very significant drawback. There were no deadlines for considering citizens’ appeals. In this case, delaying the review of documents is a chance for the owner to destroy or reconstruct the object as they wanted.
However, even under such conditions, there was a way out. The public could submit documents to the Ministry of Culture for the status of a monument of local significance without considering the issue at the level of state administrations.
This required additional production of an accounting card and a certificate of the state of preservation of the object. But it is quite possible to do so. For example, this is how the destruction of the modernist building of the Flowers of Ukraine pavilion in Kyiv was stopped.
Former Minister of Culture Oleksandr Tkachenko resigned a year ago. Since then, the ministry has been headed by acting Minister Rostyslav Karandeyev. In the spring, the Ministry of Culture changed the Procedure.
From now on, specialized public organizations cannot prepare documentation for inclusion in the List on their initiative. They have to apply to the relevant cultural heritage protection authority by submitting a Cultural Heritage Object Identification Card.
There are already deadlines for consideration – 10 working days for the authority to decide whether or not the object is an immovable cultural heritage site and whether or not it needs to be registered. However, the new Procedure does not regulate how this decision should be made and what are the grounds for “non-assignment”.
Already at this stage, officials, in the interests of the owner of a potentially valuable object, can completely block the initiative of the public – without a registered card, it is impossible to take further procedural steps.
And most importantly, there is no longer any individual responsibility for the fact that an object was not included in the List in time. Again, everything is hidden behind collective irresponsibility. The official should have simply checked the correctness of the documents, as has been the case since 2019, and now these documents must be reviewed by the Advisory Board of the cultural heritage protection body. If we look at the procedure, we have returned to the version approved in the days of Yanukovych.
Such a council must check whether the object is valuable and meets the criteria for monuments. And if the council decides collectively that the object does not meet the requirements for monuments, the cultural heritage protection body refuses to include the building in the List.
Such councils act based on a standard regulation approved by the Ministry of Culture in the era of Leonid Kuchma. Therefore, there is no public influence on the formation of the Advisory Council – its composition is approved at the discretion of the head of the Cultural Heritage Protection body, who is also the chairman of this council. No transparency and openness of its work is also ensured.
That is, we have a collegial body that can make any decision behind closed doors by voting, thereby removing responsibility from officials for their subsequent actions. The risk is greatly increased by the criteria for monuments approved by the Cabinet of Ministers, which are a set of subjective concepts and non-specific requirements.
For example, an object must “largely preserve its form and material and technical structure, historical cultural layers.” “To a large extent,” how much? For some, 10% is enough, while others need 90%. How does “significant influence” on the development of culture differ from mere “influence”? How can we make sure that certain people or events have made a “significant contribution” to the development of culture, and not just a “contribution”?
All of this makes it easy to manipulate the value of an object and not bear responsibility for it. The only thing that can save the day here is the selection of well-known independent specialists to expert and advisory bodies and complete transparency in their work.
The approach with mandatory verification of compliance with the criteria for monuments at the stage of inscription on the List is appropriate in our realities, as it can be a powerful safeguard against building corruption schemes to extort money from building owners.
However, the inspection should be designed without the above-mentioned corruption risks. The option proposed by the Ministry of Culture does not minimize these risks and at the same time will allow the destruction of cultural heritage.
If someone at the level of state administration blocks the inclusion of a building in the List, the Ministry of Culture will no longer be able to be contacted, as it was before.
There are only some echoes of the old possibilities, such as the right of the Ministry of Culture to send accounting documentation with the relevant protocol of the Expert Commission to the authorized body to decide on the inclusion of a cultural heritage site in the List.
At the same time, only issues related to the inclusion in the Register of Newly Discovered Cultural Heritage Sites and sites that acquired the status of a monument under the old legislation are considered. Thus, the regulation is returning to the state it was in during the Yanukovych era.
The public was not aware of the Ministry’s intentions. Everything was done under the guise of implementing the State Anti-Corruption Program (measure 2.5.2.1.4), which only provided for changes to the existing Procedure. And not just any changes, but quite specific ones: monitoring and control in case of delays of more than three years in considering the inclusion of objects from the List in the Register, and bringing the Procedure in line with the laws prohibiting the propaganda of totalitarian regimes and Russian imperial policy.
At the same time, according to the State Anti-Corruption Program, the draft order of the Ministry of Culture had to be subject to public discussion (measure 2.5.2.1.5). The Ministry even provided for this in the Tentative Consultation Plan for 2023, and then in the plan for this year, when the preparation of the draft order was delayed (paragraphs 5 and 3, respectively).
The NACP has not yet responded to Holka’s request. As soon as it is received, it will be made public.
It should be added that the Procedure is a regulatory act. In 2019, when the current acting Minister of Culture Karandieiev was the Secretary of State at the Ministry of Culture, the draft version of the previous version of the Procedure went through all the procedures as a regulatory act, was submitted for approval to the State Regulatory Service, and was approved by it.
However, the Ministry of Culture did not hold mandatory public consultations before issuing the order this time.
The Ministry of Culture explained such violations to the NACP by the existence of a letter from the State Regulatory Service stating that “the draft act does not contain regulatory norms, and its adoption does not require the procedures provided for by the Law of Ukraine ‘On the Principles of State Regulatory Policy…’.
Status of implementation of one of the measures of the State Anti-Corruption Policy according to the NACP monitoring module.
It turns out to be an interesting situation. In 2019, the State Regulatory Service, headed by Ksenia Lyapina, determined that the Procedure was a regulatory act. And now, for some reason, the situation has changed.
It is worth recalling here that this is not the first time the State Regulatory Service has done this. The Holka civic initiative wrote that to conduct a government “experiment” in the interests of developers and pass a resolution clone of the scandalous urban planning reform 5655, the public was also bypassed similarly.
In its response to the civil initiative’s request, the State Regulatory Service noted that it had re-analyzed the document of the Ministry of Culture, but continued to deny that the document contains changes that regulate economic relations and relations between government agencies and business entities.
At the same time, Section III of the new Procedure establishes requirements for business entities that have the right to develop accounting documentation for monuments (clause 3.3), requirements for the preparation of relevant documentation by business entities (clauses 3.2, 3.4-3.6) and the procedure for its transfer to the Customer (clause 3.7).
Excerpt from the response of the State Regulatory Service
However, the order of the Ministry of Culture would never have come into effect with all the corruption-prone norms and violations of the public consultation procedure described above if it had not been approved by the Ministry of Justice under the leadership of Denys Maliuska. The Ministry of Justice reviewed the document and found more than 100 (!) different errors in the wording, which were corrected in a separate order. However, the comments were only on the form, not on the content or procedure of preparation.
This case in the work of the Ministry of Justice is interesting because it is possible to compare the principles of the Ministry’s work now and in the summer of 2019 when the previous version of the Procedure was approved. 5 years ago, the Ministry of Justice returned everything to the Ministry of Culture and obliged it to undergo a public consultation procedure for a regulatory act. The draft order was forced to be submitted to the State Regulatory Service for approval after the order itself was issued. This took into account the proposals submitted by the Reanimation Package of Reforms and the NGO “Together Against Corruption”.
Therefore, if we talk about how state institutions function under the same laws during the war, the conclusions are disappointing. There are systematic attempts to push regulations through the government in violation of the law and with deliberate concealment of their drafts from the public. The key state bodies that are supposed to monitor compliance with the law in rulemaking are doing the exact opposite and providing a roof for the regulatory fraud of a number of ministries.
Specially for Glavkom
