Who is really to blame for the destruction of the historical Zelensky estate and how could this have been avoided?

The demolition of the Zelensky estate in Kyiv caused a stir. The Kyiv authorities nodded to the central government, and the Ministry of Culture nodded to Vitali Klitschko.

Not without the involvement of the Temporary Special Commission, which was created as a political tool instead of introducing real reforms.

The authorities of Kyiv at one time did not accept the historical and architectural basic plan of the city in order to manage the development of the capital manually. But the legislation has changed and for several years in a row the ball is exclusively in the field of the Ministry of Culture. But here they are sabotaging the implementation of the State Anti-Corruption Program and the development of by-laws necessary to protect cultural heritage.

The public initiative “Igla”, using the example of the Zelensky estate, examined how the system works in the interests of developers.

(Non)mandatory state anti-corruption policy

Uncontrolled development of historical city centers and associated corruption risks is a national problem. To overcome it, the Anti-Corruption Strategy for 2021-2025 (clause 3.5.2) provides for the establishment of a ban on new construction and reconstruction within historical areas in the absence of historical and architectural reference plans (IABP).

To implement the Anticorruption Strategy, the Cabinet of Ministers in the State Anti-Corruption Program provided for the development of a corresponding bill. Executor: Ministry of Culture. And everything should have been done and submitted to the Cabinet of Ministers for further submission to parliament a year ago.

The Ministry of Culture did nothing. The National Agency for the Prevention of Corruption, which monitors the implementation of the State Anti-Corruption Program, simply marked “Not Implemented” in its monitoring system, and everyone calmed down.

There is no approved IAOP in Kyiv. And the Zelensky estate was located in the central historical area, and it was demolished under the guise of reconstruction. The implementation of the measures of the State Anti-Corruption Program would provide the building with protection from destruction.

The implementation of these measures is mandatory (Article 18-1 of the Law “On the Prevention of Corruption”), and the acting executive bears personal responsibility for ensuring their implementation. Minister Rostislav Karandeev (Article 18-2). The historical building was destroyed, but the leadership of the Ministry of Culture is still in their positions.

And the problem is not just a single lost building. The day before the events in Kyiv, the Ministry of Culture announced the cancellation by the court of scientific and design documentation on the modes of use of the historical area of ​​Lviv and the associated risks. If the ministry had fulfilled its duties, then such court decisions would not have lifted restrictions on high-rise construction in the historical city, but would have led to the exact opposite - a complete ban on construction in the historical area.

What status could protect the building in conditions when the Ministry of Culture sabotages the implementation of the State Anti-Corruption Program?

The main narrative, which was actively popularized throughout the struggle to preserve this historical building, is that it can only be saved by granting it the status of a cultural heritage site.

But such statements are erroneous. Cultural heritage sites include only monuments and newly identified cultural heritage sites. And in accordance with state building codes (DBN B.2.2-12: 2019, clause 13.2.4), the demolition of significant and ordinary historical buildings in the territories of historical areas and monument protection zones is also prohibited.

There are no special registers or lists for recording historical buildings. They must be displayed in the historical and architectural reference plan and other scientific and design documentation for the protection of monuments. In the absence of such approved documentation, difficulties arise in achieving the appropriate status of a historical building.

If the Zelensky estate received the status of a cultural heritage site, this would be the most reliable way to protect it from demolition. But for this, the building must have a value that meets the criteria established by the Cabinet of Ministers. It was not possible to find this value from him, although specialized public organizations “Mapa Renovations” and “Heritage Kyiv” carefully searched for it and tried to prove it.

The house did not meet the criteria for historical monuments because the only known person associated with it was professor of Russian language and literature Malinin, who openly promoted Russian imperial policies in his works.

And it also did not meet the requirements for architectural monuments. It was an ordinary building of the late 19th century, which, due to the addition and partial dismantling, could not even be considered as a valuable example of the historical development of the street. In 2004, it turned from one-story to two-story, and in 2018-2021 it became twice as narrow and a quarter shorter, completely losing its historical shape and proportions.

However, according to the results of scientific research, the Zelensky estate was identified as a significant historical building as of the summer of 2021. This was publicly stated by the Ministry of Culture immediately after dismantling, citing data from the draft historical and architectural support plan for Kyiv. But this document was only approved by the Ministry in 2021, but not approved by the City Council.

The IAOP project, without its approval by the City Council, is not able to protect historical buildings from demolition. The Ministry of Culture announced this back on September 2, 2021, when the situation around the Zelensky estate first escalated.

Since May 26, 2022, the building is also located in the protected zone of an architectural monument of local significance, located on the opposite side of the street at Konissky, 19. This is a consequence of the entry into force of amendments to Article 32 of the Law “On the Protection of Cultural Heritage” introduced by Law No. 1423- IX on deregulation of land relations.

These changes, firstly, imperatively established security zones at a distance of 100 m from the territory of monuments, unless this was established for them by separate scientific and design documentation. Secondly, construction was imperatively prohibited in such cases if its height exceeds the difference between the distance to the monument and the double height of the monument.

The Zelensky estate is located so close to the monument on Konissky, 19, that it is possible to state even without measuring distances and heights: it is in a protected zone and building something higher in its place than the old building is prohibited by law.

It made no sense to demolish the Zelensky estate in order to build a multi-story building in its place. But officials and activists have never voiced information about the location of the building in the protected zone of the monument and the limit on the height of construction in its place. Therefore, the developer could simply not be aware of changes in legislation and new restrictions.

Why didn’t even an arrest as part of a criminal proceeding save the building from destruction?

The arrest imposed by the decision of the Shevchenko District Court in January of this year should have protected the estate from demolition. But he didn’t save me. To understand why this is so, you need to unwind this ball from the end.

During the meeting to select a preventive measure, the co-owner of the estate and his lawyer stated that reconstruction was taking place there on the basis of documents provided for by law, and the building was seized illegally.

Is this true? Unfortunately, yes.

More than two years ago, on June 30, 2022, the relevant department of the Kyiv City State Administration registered a notice of the start of construction work on the reconstruction of the premises of a residential building.

Although the document was issued for the reconstruction of the premises, on its basis it is possible to demolish the building to the foundation and remain clean before the law.

It is not established at the legislative level what kind of construction work belongs to this type of construction. And according to DBN A.2.2-3: 2014 “Composition and content of design documentation for construction”, partial preservation of the elements of load-bearing structures is sufficient for reconstruction. Therefore, it is enough for the developer to leave at least one brick from the old foundation in the ground as this “partially preserved element of the supporting structure” - and de facto new construction turns into de jure reconstruction.

Was there any corruption in the Kyiv City State Administration when registering this message? No, because we have complete deregulation for small objects. If the submitted notification is completed correctly, it must be registered.

This document was never hidden. It is publicly available in the Unified State Electronic System in the field of construction. But its existence is not advertised. Moreover, they are manipulating statements that no permits were provided for the dismantling of the building. Officials are not formally deceiving - the notification is not a permitting document. But they are silent that, according to the current legislation, permits are not needed for the demolition of such a historical building.

The building was seized in January of this year as material evidence of the destruction of a cultural heritage site. But the Zelensky estate has never been an object of cultural heritage.

As the city prosecutor's office explains in a statement, they applied for seizure, since the specified land plot is within the boundaries of the historical area and therefore construction work requires permission from the Ministry of Culture. But the already mentioned Law No. 1423-IX on the deregulation of land relations canceled the requirement to obtain permission from the Ministry of Culture as of January 1, 2023 (Part 7 of Article 32 of the Law “On the Protection of Cultural Heritage”).

Thus, the seizure was imposed on evidence of a crime that theoretically could not have been committed in this case. Theoretically, there could be no significant harm from violating this unlawful arrest, therefore its violation in accordance with Part 2 of Art. 11 of the Criminal Code is not a criminal offense.

Also, the demolition of the Zelensky estate, contrary to the assertion of the prosecutor’s office, cannot be unauthorized construction on an unauthorized plot of land. The developer was provided by law with notification of the start of construction, and the right to use the land plot is not required in the case of reconstruction within the existing foundations (Part 4 of Article 34 of the Law “On the Regulation of Urban Development Activity”).

The situation described above demonstrates the real depth of the problem. Almost in the center of Kyiv, a significant historical building was roughly demolished, and law enforcement officers, in order to relieve public tension, have to falsify a criminal case against the developer. And this is a consequence of unbalanced deregulation in construction, which is consistently carried out by the Verkhovna Rada in the interests of the construction lobby.

The situation could be corrected by canceling the registration of the notice of the start of construction or by providing evidence that the Zelensky estate is a significant historical building and is prohibited from being demolished.

To cancel the registration of the notice of the start of construction, it was necessary to conduct an inspection and establish the fact of violations during construction.

Under martial law, the Cabinet of Ministers (in the absence of powers) actually banned inspections, allowing only unscheduled inspections based on a decision of the Ministry of Infrastructure and only “in the presence of a threat that has a negative impact on the rights, legitimate interests, human life and health, protection of the natural environment and ensuring security states, as well as to fulfill international obligations.” At first glance, there should be no problems - construction that threatens the preservation of the traditional character of the historical environment, by definition, has a negative impact on human rights and legitimate interests.

This spring, the Kyiv City State Administration attempted to inspect the construction on Konissky. Information about this is in the letter from the Kyiv City State Administration on the implementation of the petition to protect the Zelensky estate.

The Ministry of Infrastructure did not allow the inspection, citing the response of the State Inspectorate of Urban Planning and Architecture, according to which the documents do not contain materials indicating the presence of a threat that has a negative impact.

One could accuse the Department of Architectural Construction Control of the Kyiv City State Administration of deliberately leaking the issue in the interests of the developer, if not for one nuance. According to the order of the Ministry, not the applicant, but GIAM must study the situation and provide written justification for the presence or absence of threats.

That is, the Ministry of Infrastructure and GIAM considered the issue with the Zelensky estate and came to the conclusion that the dismantling of the historical building does not pose a threat that would have a negative impact on the rights and legitimate interests of people.

If there were documents confirming the status of the Zelensky estate as a significant historical building and a ban on its demolition, it became possible to effectively resist dismantling, even if the developer had a registered notice of the start of construction.

During the time that Kiev was led by mayor Vitaliy Klitschko, two IAOP projects were prepared for budget funds: the first was submitted to the Ministry of Culture in 2016, the second in 2021. Nothing prevented us from approving the necessary document as an amendment to the current General Plan of the city back in 2017.

But this did not happen. The IAOP is unprofitable both for the influential construction lobby, since it sets restrictions on the most profitable development in the historical center, and for the city authorities, since it deprives the possibility of manual control. But the public could not force the City Council to do this, because the legislation does not establish any requirements for the timing of the development and approval of this document.

The 2021 IAOP project is already more complicated - it could not be approved until the Kyiv City State Administration ensures the development of scientific and design documentation to determine the boundaries and modes of use of historical areas. This was emphasized by the Ministry of Culture when approving the project.

But from May 26, 2022, this documentation cannot be developed and approved. The changes introduced by Law No. 1423-IX required the Cabinet of Ministers to approve the procedure for development and approval and determine the composition and content of such documentation. This has not yet been done because the Ministry of Culture has disrupted the preparation of projects for government approval.

The option of developing and approving the boundaries and modes of use of the protection zones of the above-mentioned monument at Konissky, 19, is also impossible from the same date. The Ministry of Culture disrupted the preparation of projects for approval by the Cabinet of Ministers and the development of this documentation.

And this is not all the “merits” of the relevant ministry.

According to the Law “On the Protection of Cultural Heritage,” it is the body that is responsible for formulating policies in the field of cultural heritage protection and has the exclusive authority to issue binding orders and orders to stop work carried out in violation of legal requirements in historical areas.

As already noted, the ministry immediately after the destruction of the Zelensky estate stated that this was a significant historical building and its demolition was prohibited. But it had the opportunity long before to provide clarification regarding the historical status of the building and the ban on its demolition.

The ministry was well aware of the problem, but did nothing. As Rostislav Karandeev stated at a meeting of the Temporary Special Commission of the Verkhovna Rada, the Ministry of Culture has recently received 12 appeals from representatives of public organizations who expressed concern about the fate of this house. But the ministry did not fulfill its powers, but forwarded public appeals to the Kyiv City State Administration.

To complete the picture, it should be noted that according to the Unified State Electronic System in the field of construction, the Department of Urban Planning and Architecture of the Kyiv City State Administration six times refused to issue urban planning conditions and restrictions, without which the developer does not have the right to design an object larger than the existing historical building. One of the decisions was appealed in court, and the materials indicate that the refusals were granted illegally on grounds not provided for by law.

The town planning conditions and restrictions were only issued in June this year in pursuance of an appeal court decision. Some media outlets, citing the head of the Heritage Kyiv NGO, disseminated information that the Kyiv City State Administration allowed the construction of a house of 9-12 floors. However, this information does not correspond to reality - the developer is expressly prohibited by this document from building higher than the height of the existing historical building.

As this analysis shows, the situation is fundamentally different from that previously voiced by the authorities and the monument protection community.

If we take the situation in Kyiv as a whole, then both the local authorities under the leadership of Vitali Klitschko and the Ministry of Culture could protect historical buildings from destruction by developers. But they didn't do it.

The local authorities did not exercise their right to approve the historical and architectural plan. That is, we are talking about political responsibility, and Kiev residents must evaluate such actions at the next elections.

The Ministry of Culture did not fulfill its duties and directly violated the requirements of the law. And for this, Rostislav Karandeev and the heads of responsible departments should at least be fired.

Directly in the situation with the Zelensky estate, local authorities and law enforcement agencies tried to protect the building, sometimes even violating the letter of the law to do so. However, due to deficiencies in the legislation, they were unable to do this.

The Ministry of Culture had the authority to save the building, but did not act. And the Ministry of Infrastructure and the State Inspectorate of Architecture and Urban Planning also put a spoke in the wheels of the Kyiv City State Administration by prohibiting construction inspections.

Let's sum it up

To solve a problem, you need to identify the cause of its occurrence. And what is happening now in the public sphere is a search for a scapegoat with political overtones, aimed at hiding the causes of the problem with the protection of historical buildings. For unknown reasons, the monument conservation community is also actively participating in this game, misleading the public about the essence of the event.

To prevent developers from further destroying our history, we need to take the following steps.

1. Implement anti-corruption program documents and, at the legal level, establish a moratorium on construction in historical areas in the absence of an approved historical and architectural reference plan.
2. Cancel previously illegally established restrictions by the Cabinet of Ministers for unscheduled inspections of architectural control.
3. The Cabinet of Ministers, together with the Ministry of Culture, must prepare and approve by-laws, without which the development of scientific and design documentation necessary for the protection of cultural heritage has been completely blocked for more than two years.
4. The Verkhovna Rada should stop unbalanced deregulation in construction. If developers have the opportunity to freely destroy historical buildings, even without bribes to officials, this is not a change for the better.
5. And, of course, there must be personnel consequences in the government and the Ministry of Culture. The acting office does not correspond to the existing challenges in the field either in terms of responsibility or in terms of personality.