Protecting cultural heritage in a new way or how the Ministry of Culture can contribute to the destruction of valuable architecture

However, it was the destruction of the Zelenskyi Estate that confirmed that Ukraine’s cultural heritage is not properly protected at the legislative level: The Department of Cultural Heritage Protection of the Kyiv City State Administration (DCHP) can actually block the decision to grant the building a protected status, and the Ministry of Culture has no legal authority to influence this decision. And as we all know, a valuable building without a protected status in the historic center of the city is a tasty morsel for any developer.

Why is this happening? In the spring of 2024, the Ministry of Culture updated the Procedure for registering cultural heritage sites and changed the procedure for obtaining protection statuses for buildings, effectively making them vulnerable to developers.

In this article, we will speculate on what exactly the Ministry of Culture has “broken” in its new regulation of the accounting of cultural heritage sites.

The Procedure for Accounting for Cultural Heritage Objects: What is it and what is its purpose?

In general, the Procedure establishes the procedure for granting a building the status of an architectural monument of local or national significance, depending on its impact on Ukrainians’ cultural and historical lives.

The status of an architectural monument is protective, meaning that it aims to protect a valuable building. In fact, this status obliges the owner to maintain the monument in proper condition, carry out timely repairs, and protect it from damage, demolition, and destruction. 

However, the most important thing for any owner of a monument is the prohibition of reconstruction, i.e., its rebuilding. Owners usually do not like restoration, as it involves only rescue and restoration work, which cannot turn a 3-story old building into a 15-story office center.

Today, not all valuable buildings have the protected status of an architectural monument. This phenomenon has many reasons, including

• the inaction of government agencies and scientific institutions that are supposed to research and record Ukraine’s cultural heritage;
• cancellation of protection statuses by the owners of buildings through the courts for their substantial or complete reconstruction;
• overwhelming indifference of Ukrainians to the need to preserve the cultural heritage of Ukraine;
• lack of public involvement in the process of cultural heritage protection.

This is precisely the situation that the new Procedure was supposed to remedy: to make accounting more efficient, minimize the risks of revoking buildings’ protective status in court, and officially recognize the public’s right to participate in the accounting process.

Main provisions of the new Procedure for registration of cultural heritage objects

The procedure for granting a building the status of an architectural monument consists of three stages:

1. Initiation of the registration of a building as a cultural heritage site, which consists of submitting an application (Cultural Heritage Site Identification Card) to the state (military) administration whose powers extend to the territory where the building is located. Upon receipt of the application, the state (military) administration considers it and decides whether or not the building is classified as an immovable cultural heritage site.
2. Granting a building the status of a newly discovered cultural heritage object and entering it into the Register (List) of Cultural Heritage Objects on the basis of a decision of the Advisory Council of the cultural heritage protection body of the state (military) administration. Such a decision is made on the basis of accounting documentation that contains a justification for the building’s compliance with the criteria of an architectural monument of local or national significance. The status of a newly discovered cultural heritage object is an interim protection status of a building until the issue of granting it the status of an architectural monument is resolved.
3. Granting a building the status of an architectural monument of local or national significance and entering it into the State Register of Immovable Monuments of Ukraine based on a decision of the Ministry of Culture based on accounting documentation previously approved by the state (military) administration.

There are still positive changes in the new Procedure for the registration of cultural heritage

The first positive change is the recognition of the public as a full-fledged and active subject of cultural heritage protection.

The Procedure now explicitly and without alternative states that non-governmental organizations whose statutory tasks include the protection of cultural heritage may initiate the granting of the status of a newly discovered cultural heritage site and architectural monument to a building, as well as customers and developers of accounting documentation.

The previous version of the Procedure did not explicitly mention the possibility of a non-governmental organization developing accounting documentation. According to this version, only a scientific institution, including a cultural institution, could develop accounting documentation, which significantly reduced the effectiveness of cultural heritage protection. The reason for this is, in particular

• lack of clear criteria for what should be understood as a scientific institution or cultural institution;
• outdated understanding of the nature of scientific institutions and cultural institutions in the context of mandatory state ownership by state bodies and courts;
• inactivity of state-owned scientific institutions and cultural institutions in the development of accounting documents and, in some cases, their self-serving assistance to building owners in canceling their protection statuses.

In such a de facto stalemate in the protection of cultural heritage, only the public can “change the rules of the game” and ensure its protection. However, the absence of direct references to this in the previous version of the Procedure led to the cancellation of the protection statuses of buildings whose accounting activities were developed by public organizations.

In particular, the ability of a non-governmental organization to develop accounting documentation as a scientific and cultural institution is the subject of a dispute in case No. 640/30303/21 regarding the protection status of the Flowers of Ukraine building, which is currently under consideration by the Supreme Court.

The second positive change is the removal of the provision of the Procedure on the mandatory form of the decision to grant a building the status of a newly discovered cultural heritage site: an order of the head of the local state administration.

This is certainly good news, primarily for Kyiv’s urban development, as the head of the Kyiv City State Administration did not issue such orders at all and delegated such powers to the director of the DCHP. As a result, the inconsistency of the decision’s form is a fairly popular ground for revoking the protection status of Kyiv buildings in court.

In particular, in case No. 640/22099/21, the House with Flies lost its protected status only because of the decision’s form, as it was an order of the Director of the DCHP, not an order of the head of the Kyiv City State Administration.

The negative changes in the new Procedure for the registration of cultural heritage are significant and are already showing signs

The previous version of the Procedure provided two ways to grant a building a protection status:

• granting a building the status of a newly discovered cultural heritage site by the state administration, which in turn became the basis for the Ministry of Culture to make a decision on granting the building the status of an architectural monument; or
• granting a building the status of an architectural monument by the Ministry of Culture, which in turn became an unconditional basis for the state administration to decide to grant the building the status of a newly discovered cultural heritage site.

In other words, the previous version of the Procedure gave the initiator of the building registration the right to choose a state body authorized to grant the building a protection status. This provision actually gave the initiator the right to “bypass” and not involve the state administration in the procedure for deciding on the protection status of the building.

The new version of the Procedure does not provide for such a choice. It is impossible to apply to the Ministry of Culture without the approval of the building’s records and the status of a newly discovered cultural heritage site by the state (military) administration.

Therefore, there are fears that the new Procedure creates even greater corruption risks in the field of cultural heritage protection due to the “concentration of power” in state (military) administrations regarding the issue of granting buildings with protection statuses. And, of course, the greater the corruption risks, the worse the process of cultural heritage registration will be.

The consequences of the adoption of the new Procedure were felt, first of all, by the Zelenskyi Estate, which was illegally demolished by its owners. The building could not receive the protection status of a local monument due to the inaction of the State Committee for Historic Preservation, which lasted more than a year and a half. After its demolition, the Ministry of Culture decided to grant it the status of a local architectural monument, but without a prior decision of the State Committee on Cultural Heritage to grant it the status of a newly discovered cultural heritage site. 

What does this mean? It is a reason to cancel the protection status in court, because according to the new Procedure, the Ministry of Culture does not have the authority to decide on the status of a monument without the approval of the Advisory Council of the State Committee on Cultural Heritage of Ukraine of the building’s accounting documentation and granting it the status of a newly discovered cultural heritage site, and in general, it no longer has the authority to oblige the State Committee on Cultural Heritage to take such actions.

Yes, you read that right: The Ministry of Culture has deprived itself of the authority to oblige the State Committee to comply with the orders of the Ministry of Culture.

Conclusions

The new Procedure for Accounting for Cultural Heritage creates new corruption risks, although it does provide for positive innovations. However, these innovations are unlikely to play any positive role due to the risk of dishonest behavior by employees of state (military) administrations.