The order of the Ministry of Culture deprived citizens of the right to protect cultural heritage
A scandal broke out in the capital over the weekend. The Zelensky estate was demolished. The mayor of Kyiv, Vitaliy Klitschko, had already called the incident a “cynical provocation” and noted that the relevant department of the Kyiv City State Administration had sent documents to the Ministry of Culture a few days earlier to protect the building and grant monument status: “Activists are coming under the city hall building.
Like, “Klitschko demolished the monument.” But why don’t outraged demonstrators go and ask questions to parliament, which for more than 5 years has not adopted the bill submitted by the city so that the capital has leverage over unscrupulous owners of ancient buildings? Why don’t they turn to the government, from which the city has been demanding for so many years to return the Sikorsky house, which is on the balance sheet of the Ministry of Defense, to the community’s ownership. The same Cabinet of Ministers blocked the transfer of Gostiny Dvor to the community, which the city, together with activists, returned from private property to state property. But the monument also stands without reconstruction and is being destroyed.”
Reply from acting Minister of Culture Rostislav Karandeev was not long in coming. He called these false accusations and blamed everything on the capital’s authorities, which are improperly working in this direction.
In fact, 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 the history of Ukraine and cultural heritage. Therefore, the protection of monuments is one of the pillars of protecting national security and preserving national identity. When the developer, who had a Russian plume, was destroying the Flowers of Ukraine building in the center of Kyiv, the people of Kiev were able to protect it. They ensured that the building was promptly given the status of a monument. Then the Ministry of Culture helped, other rules were in effect.
The public has always played a key role in the process of protecting monuments. So this spring an order appeared that deprived citizens of the right to protect cultural heritage. And the Ministry of Culture was allowed to adopt such a 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. And this was also needed by developers, who, by the way, are often prevented from doing their business projects by cultural heritage and therefore the prosecutor’s office has been defending Pirogov, Kitaev, the Museum of Prominent Figures of Ukraine, in the courts for years. Literary square. (In these cases, there are serious questions both about the deputies of the City Council and about what position the city authorities take in the courts).
New procedures carry corruption risks. Here, officials ignored the State Anti-Corruption Program and the requirements for public consultation when creating such documents. The NAPC must respond to this.
The public initiative "Igla" studied new government policies regarding cultural heritage and found that the authorities have returned the rules of the game that were established during the time of Yanukovych.
Status of the monument and the role of citizens
When a building is included in the State Register of Immovable Monuments of Ukraine, then if someone destroys it, it is a crime. Moreover, the owner must take care of such a building. This is provided for by the Law “On the Protection of Cultural Heritage”.
As soon as the developer finds out that the building can be granted monument status, it can be quickly demolished. Then there will be nothing to add to the Register and instead of a historical building there will be some commercially profitable real estate. This is exactly what happened with “Flowers of Ukraine” in the center of Kyiv. Shortly before the building was included in the Register, the façade was destroyed.
To prevent this from happening, there is a special status of “newly identified cultural heritage object.” 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 structure is included in a special list. And then criminal liability is also provided for its destruction.
The procedure in such cases should really be as simple and fast as possible. But not every historical building has significant cultural value to receive the status of a monument. Therefore, there are risks of abuse of banal extortion from owners of ordinary historical buildings.
Therefore, it is necessary to set strict deadlines for cultural heritage protection bodies that prepare documents to consider the issue of adding an object to the Register.
When the Ministry of Culture decided to change 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 protective 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.
The real revolution occurred after the 2019 presidential elections, when the Ministry of Culture, under Prime Minister Vladimir Groysman, approved a new edition of the Order. And here the public has finally appeared when it comes to adding an object to the List and granting the status of a newly identified cultural heritage object. The list of documents that needed to be submitted for this was reduced to a minimum. It was worth having only a photographic record of the object and a historical certificate, which had to be signed by a person with an academic degree in the relevant specialty (art history, architecture, history, etc.).
It was possible to refuse only in the absence of documents or the absence in the historical reference of justification for the authenticity of the object or its value.
But there was a very significant drawback. The time frame for consideration of citizens' appeals has not been established. And delaying the review of documents is a chance for the owner to destroy or reconstruct the object the way he wanted.
But even under such conditions there was a way out. The public could submit documents to the Ministry of Culture for assignment of the status of a monument of local significance without considering the issue at the level of state administrations.
This required the additional production of a registration card and a certificate of the state of preservation of the object. But doing this is quite possible. 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 Alexander Tkachenko resigned a year ago. Since then, the ministry has been headed by acting Rostislav Karandeev. In the spring, the Ministry of Culture changed the Order.
How did the Ministry of Culture block the participation of citizens?
From now on, specialized public organizations cannot, on their own initiative, prepare documentation for adding an object to the List. They must contact the relevant cultural heritage protection authority by submitting a Cultural Heritage Identification Card.
There are already deadlines for consideration here - there are 10 working days for the authority to make a decision on classifying or not classifying an object as an immovable cultural heritage site and the need to draw up a registration card for it. But exactly how this decision should be made and what grounds for “non-attribution” are not regulated by the new Procedure.
Already at this stage, officials, in the interests of the owner of a potentially valuable object, can completely block the public initiative - without a registered Card, it is impossible to carry out further procedural steps.
And most importantly, there is no longer any individual responsibility for the fact that the object was not included in the List on time. Once again, everything is hidden behind collective irresponsibility. The official should simply check the correctness of the preparation of documents, as has been the case since 2019, and now these documents should be reviewed by the Advisory Council under the cultural heritage protection body. In fact, if we look at the procedure, we have returned to the edition approved during the time of Yanukovych.
And such a council must check whether the property has value and meets the criteria for monuments. And if the council makes a collective decision that the object does not meet the requirements for monuments, then the cultural heritage protection body refuses to include the building in the List.
Such councils operate on the basis of standard regulations approved by the Ministry of Culture during the era of Leonid Kuchma. Therefore, no public influence is envisaged on the formation of the Advisory Council - its composition is approved at the sole discretion of the head of the body for the protection of cultural heritage, who is also the chairman of this council. There is also no provision for transparency and openness of its work.
That is, we have a collegial body that, behind closed doors, can make any decision by voting, thereby removing responsibility from officials for their subsequent actions. The risk is significantly 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, the object must “to a large extent preserve its shape and material and technical structure, historical cultural layers.” “To a large extent”, by how much? For some, 10% is enough, but for others, 90% is needed. How does “significant influence” on the development of culture differ from just “influence”? How can you be sure that certain people or events have made a “significant contribution” to the development of culture, and not just a “contribution”?
All this makes it easy to manipulate the value of an object and not bear responsibility for it. The only thing that can save us here is the selection of well-known independent specialists into expert and advisory bodies and complete openness in their work.
An approach with mandatory verification of the object’s compliance with the criteria for monuments at the stage of inclusion in the List is appropriate in our realities, because this can become a powerful guard against the construction of corruption schemes for extortion from building owners.
But the audit must be structured without the above-mentioned corruption risks. The option proposed by the Ministry of Culture will certainly not minimize these risks and, at the same time, will allow the destruction of cultural heritage.
If at the level of state administrations someone blocks the inclusion of a structure on the List, then it is no longer possible to contact the Ministry of Culture, as was the case before.
There remain only isolated echoes of the old possibilities, such as the right of the Ministry of Culture to send accounting documentation with the corresponding protocol of the Expert Commission to the authorized body to make a decision on including a cultural heritage object in the List.
In this case, exclusively issues of inclusion in the Register of newly identified cultural heritage sites and objects that have received the status of a monument under the old legislation are considered. Therefore, regulation is returning to the state it was during the time of Yanukovych.
How were new changes brought in secretly?
The public was unaware of the Ministry's intentions. Everything happened 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 very specific ones: monitoring and control in case of delays of more than three years in considering issues of adding objects from the List to the Register, and bringing the Order into compliance with the laws banning the propaganda of totalitarian regimes and Russian imperial policies.
At the same time, according to the State Anti-Corruption Program, the draft of such an order of the Ministry of Culture should have undergone public discussions (event 2.5.2.1.5). The Ministry even provided for this in the Indicative 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).
NAPC has not yet provided a response to Golki’s request. As soon as it arrives, 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 Karandeev was Secretary of State in the Ministry of Culture, the draft 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.
But this time the Ministry of Culture did not conduct mandatory consultations with the public before issuing the order.
The Ministry of Culture explained such violations to the NACP by the presence of a letter from the State Regulatory Service that “the draft act does not contain norms of a regulatory nature, and its adoption does not require the procedures provided for by the Law of Ukraine “On the Fundamentals of State Regulatory Policy...”.
It turns out to be an interesting situation. In 2019, the State Regulatory Service under the leadership of Ksenia Lyapina established that the Procedure is a regulatory act. But now for some reason the situation has changed.
It is worth recalling here that this is not the first time that the State Regulatory Service has done this. The public initiative “Igla” wrote that in order to conduct a government “experiment” in the interests of developers and pass a clone resolution of the scandalous urban planning reform 5655, the public was also bypassed in a similar way.
In its response to a request from a public initiative, the State Regulatory Service noted that it had analyzed the Ministry of Culture document again, but further denied that the document contains changes that regulate economic relations and relations between authorities 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 business entities to prepare the relevant documentation (clauses 3.2, 3.4-3.6) and the procedure for its transfer to the Customer (clause 3.7).
But the order of the Ministry of Culture would never have come into force with all the corruption-inducing norms described above and violations of the public consultation procedure if it had not been agreed upon by the Ministry of Justice under the leadership of Denis Malyuska. The Ministry of Justice reviewed the document and discovered more than 100 (!) various errors in the wording, which were corrected by a separate order. But the comments were only about the form, and not about the content or preparation procedure.
This case in the work of the Ministry of Justice is interesting because it is possible to compare the principles of work of the Ministry of Justice now and in the summer of 2019, when the previous edition of the Procedure was agreed upon. 5 years ago, the Ministry of Justice returned everything to the Ministry of Culture and obliged it to undergo a public consultation procedure, as for a regulatory act. And the draft order was forced to be submitted to the State Regulatory Service for approval after the order itself was issued. Thanks to this, the proposals sent by the Resuscitation Package of Reforms and the NGO “Together against Corruption” were taken into account.
Therefore, if we talk about how state institutions work according to the same laws during war, the conclusions are disappointing. There are systematic attempts to push regulations through the government in violation of the law and deliberately concealing their projects from the public. Key government bodies, which are supposed to ensure control over compliance with legislation during rule-making, act in exactly the opposite way and provide a cover for the regulatory machinations of a number of ministries.
The head of the Department of Consent and Permit Documentation of the Ministry of Culture, Natalya Voitseshchuk, notes in a commentary: “New changes to the accounting procedure, on the contrary, have made the procedure more consistent, public and more open to attracting specialists in the field of cultural heritage protection. Yes, it is possible that not all possible cases and situations were taken into account. Therefore, we will carefully consider and model the analysts' comments and risks. Also, comments and suggestions will appear (and they already exist) from security authorities and developers of accounting documentation, initiators of the presentation of objects in the process of practical implementation of this version of the Accounting Procedure, especially in connection with testing the Information and Communication System for accounting for immovable cultural heritage sites of Ukraine “State Register of Real Estate monuments of Ukraine".
