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Legal View on Protection of Cultural Heritage in Interest of Society, Business and State

Legal aspects of the protection of cultural heritage sights, as well as keeping the balance between the interests of society, business and state in this sphere were discussed by the experts at the platform of the 7th St. Petersburg International Legal Forum.

The discussion was moderated by Maria Melnikova, Advisor to the Minister of Justice of the Russian Federation, Julia Loginova, Deputy President of the Union of Restorers of Russia, Advisor to the Head of the Department of Cultural Heritage of the City of Moscow. The discussion was participated by Jean-Christophe Barbato, Professor of public law of the University of Nantes, Artem Demidov, First Deputy Chairman of Central Council of the All-Russian Society for the Preservation of Monuments, Arnaud Bernard de la Jartre, Law Teacher at the University of Angers,  Sergey Makarov, Chairman of the Committee for State Control, Use and Protection of Historical and Cultural Monuments of St. Petersburg, Sergy Mirzoyan, First Deputy Head of the Department of Cultural Heritage of Moscow – Chief Inspector in the Field of State Protection of Cultural Heritage Sites, Daniil Seledchik, Chief of the Russian Section of the International Association for Identification, Roman Rybalo, Deputy Director of the Department of STate Protection of Cultural Heritage in the Ministry of Culture of the Russian Federation, Tatiana Chernyaeva, Deputy Chairperson of the NP “Russian Association of Restorers” and Aleksey Chichkanov, Executive Vice-President – Head of the Public-Private Partnership Centre of “Gazprombank”.

When opening the discussion, Sergey Mirzoyan, First Deputy Head of the Department of Cultural Heritage of Moscow, pointed out some contradictions in the Russian system of monument protection. “Today, people speak a lot about the necessity to preserve historical and cultural heritage of the country, and it's a good trend indeed. However, some people say that there are not enough measures of protection and we need “to tighten the screws”, others believe that this sphere is already extremely regulated and has many administrative barriers. I think, the truth is somewhere in between, but there is a long-felt need to discuss these issues, to find legally tailored mechanisms of legislation improvement,” the expert said.

According to his opinion, a big problem is that a number legislative rules and regulations need to be strengthened to protect cultural heritage sites. However, in such case the monuments might loose their investment attractiveness, and it is impossible to do restoration only with budget funds. That's why Sergey Mirzoyan believes that some rules and regulations should be simplified – without bringing harm to monument preservation. “If we make everything more complicated and regulate everything, no one will invest in the monuments. At the same time, neither federal, nor regional, least of all local budgets will not manage the whole scope of restoration works. In such context, people will get around the law and pay penalties, which are quite big, but though not comparable with expenditures, necessary for correct actions with the architectural monument,” First Deputy Head of the Department of Cultural Heritage of Moscow underlined.

Sergey Mirzoyan pointed out that according to the current legal rules and regulations, the order of renovation, restoration, conservation, and adjustment of buildings for modern use is almost the same for protected and regular real estate sites. “We believe that the measures have to be optimized. At least for works that are performed not only at the object of protection, it is enough to limit them with project documentation only. Other mechanisms need to be discussed,” he said.

Sergey Mirzoyan also noted that because of the necessity to have a contract with subcontractors before the submission of project documentation to the protection authorities, the employers of work bear the risks – because the it takes quite a long time to receive an approval, and no one guarantees that you will receive an approval at the end of the day. “Many employers of work have an interest to first approve the project, and then receive a permission, but such opportunity is not foreseen and we have to think, how to overcome it,” First Deputy Head of the Department of Cultural Heritage of Moscow explained.

He specifically touched upon current measures of investment stimulation in the sphere of architectural monuments in Russia. As he said, there are few such mechanisms in the country and they are not efficient enough. “The Law excludes the cultural heritage sites of federal importance from the list of taxable items. The norm might be good, but t is not clear, why there is such an easing of requirements. If the preference were given for something good, conscious attitude towards the architectural monuments – then it would be clear. However, now it is used regardless of the state of the site. Such norm does not stimulate the performance of works. Such preference should be only given to sites, where restoration works have been performed and they are accepted by the protection authority,” Sergey Mirzoyan pointed out.

Sergey Makarov, Chairman of the Committee for State Control, Use and Protection of Historical and Cultural Monuments of St. Petersburg, agreed with his colleague. “We have two problems: insufficient regulation in some areas and excessive regulation in other areas. And both of them have an impact on the involvement of monuments to process of work, and lead to slow work of monument protection authorities. There is truly some excessiveness. We really have a lot of papers, that are, to my mind, often not needed to take quick decision about the involvement of a site to a process of work,” he said.

According to Sergey Makarov, legislators should mind that regulations should be easy to implement. “The logic of legislators is absolutely clear: for the reason that the heritage site is not a regular item of real estate, it requires utmost attention. However, in case of any intervention the existing protection mechanisms have to be discussed in a broader context, because in certain cases one could discard some documents or compromise their significance”, Chairman of the Committee for State Control, Utilization and Protection of Historical and Cultural Landmarks of Saint-Petersburg City Administration underscored.

Arnaud Bernard de la Jartre, Law Teacher, University of Angers spoke about cultural heritage protection practices in France. According to him, in France most of the architectural monuments are private property; however, the state monitors all the works performed to this estate and can force the owner to perform restoration of the building, even if the owner is unwilling to do so. Jean-Christophe Barbato, Professor, University of Nantes, spoke about supranational control to protect cultural heritage in Europe. He noted that this duty is predominantly performed by the European Union; however, some oversight functions are granted to the Council of Europe.

In his turn, Aleksey Chichkanov, Executive Vice-President - Head of the Public-Private Partnership Centre, Gazprombank, mentioned that Russian investors would favor long-term lease of heritage real estate as a more promising and easier way. He explained that privatization of protected buildings provokes averse perception among Russians and may be a challenge for the owner. “To me, lease on conditions of investment is stipulated by law; it a flexible mechanism that could see further development. I see little difference between ownership and long-term lease, provided that compliance with the state requirements is well-balanced against investor’s margin”, Aleksey Chichkanov said.

He also pointed out that today Russian investors fail to understand all the finer points of national policies in this area. “The fact that the government is allocating funds is a good thing, but it is all too simple. What the government should be doing more actively is attracting investments and creating an environment that would provoke investors to invest into the areas that the government wants them to invest. Federally and regionally, the government lacks a general framework to draw investments. A clear strategy is all the essence”, Head of the Public-Private Partnership Centre, Gazprombank said.

Daniil Seledchik, Chief, The Russian Section of the International Association for Identification, suggested to reduce the timeframe that is required to agree the design documentation on works permed at protected heritage sites with oversight bodies.  “This would be a step forward towards construction companies”, he noted. In addition, in his view, it is crucial to distinguish between types of works done to protected heritage sites and therefore requirements applied to interventions at the heritage site should be different from those applied to other types of works within the building. “Restoration must cover no more than 10% of all works, whereas the rest is regular construction and maintenance; however, the requirements to reporting and certification are the same, without any distinction. I believe that such practice is not entirely accurate”, Daniil Seledchik underscored.

The discussion participants have not but once addressed the issue of cultural and historical inspection that is obligatory for obtaining a permit to perform works on heritage sites today. The composition of expert commissions is often questioned by clients; moreover, integrity, absence of bias, and transparency of such inspections is often questioned even by the authorities.
Roman Rybalo, Deputy Director, Department of State Protection of Cultural Heritage, Ministry of Culture of the Russian Federation, spoke about the measures that are being developed in order to improve the operation of expect commissions on the federal level. He said that “the Government has adopted amendments to the Regulation on historical and cultural inspection procedure pertaining to the use of electronic and digital signature, in order to make all the documents signed by the experts available to both heritage protection bodies and investors”.

According to the expert, quite often both heritage protection bodies and investors are clueless as to the logic behind the experts’ decision, whereas in their report experts in fact determine the future of the project. “We should either reduce the number of experts who sign project design documents, or get rid of them; possibly, heritage protection bodies are better professionals than experts who sign reports. However, it is us, who certified the experts; how come we do not trust them?”, Deputy Director, Department of State Protection of Cultural Heritage, Ministry of Culture of the Russian Federation highlighted.

At the end of the discussion moderator Maria Melnikova noted that cultural heritage protection is still compromised by numerous unanswered questions. “I think that this topic will be reiterated not only within the framework of St. Petersburg International Legal Forum. Such discussions are crucial to emphasize the relevance of the issue and the requirement to elaborate future legislative; this is what we should remain our focus”, she concluded.