… the legislative basis at the municipal level is clearly inadequate in modern conditions for legal regulation in this sphere.  In acts of Federal legislation passed more recently, the powers of subjects [subordinate administrations] of the Russian Federation have been fundamentally changed where the conservation, use, popularisation and state protection of cultural heritage property is concerned. Furthermore, the conceptual framework employed in the legislation of the Russian Federation and the legislation of the City of Moscow is often different.  Lastly, a number of provisions in the municipal law currently in force ‘On the protection and use of the real estate of historical and cultural monuments’ (in particular, articles 13, 14, 16, 17, 20, 25 and 26, but also chapters 6 and 7) directly contradict the more recently adopted Federal law № 73-FZ ‘On the cultural heritage property (monuments of history and culture) of the peoples of the Russian Federation’ dated 25.06.2002.

In addition, a multitude of problem issues to do with the conservation, use, popularisation and state protection of cultural heritage property are not regulated by federal legislation and legislation of the City of Moscow that is currently in force:

- the object of protecting cultural heritage property, depending on the type of real estate in question (buildings and structures, parks and gardens of aesthetic value, grounds etc.) has not been determined;

- a procedure for affirming what grounds are occupied by cultural heritage properties, for establishing the boundaries of a cultural heritage property and its grounds, both as an monument of history and culture and as a real estate asset, has not been specified;

- regimes and rules have not been determined to regulate activity in places overlapping and adjoining the boundaries of the grounds of a monument and thereby to organise a unified protected zone of great importance;

- regimes have not been determined for the use of individual parts of protection zones around cultural heritage property – the sectors of the network of streets and roads intended for public use (for vehicular traffic) in red lines;

- zones where new building and economic activity comes under regulation, zones where natural  landscape is safeguarded, and principles for building development activity have not been determined;

- buildings in respect of which applications have been submitted for consideration with the purpose of their being listed as identified cultural heritage properties are not safeguarded by State protection; no stage-by-stage procedure has been determined for placing cultural heritage property under State protection;

- The question has not been settled of who should be responsible for the condition of the community fabric (facades, roofs, attics, basements, landings) of cultural heritage properties that are houses with multiple residential apartments, or of cultural heritage properties in the ownership (use) of several persons;

- regimes for the use of cultural heritage properties employed for industrial purposes (monuments of industrial architecture) have not been determined;

- regimes for the use of underground space beneath cultural heritage properties and their grounds have not been determined;

- there are no regulatory standards for adapting cultural heritage parkland property (gardens and parks that are works of art) to modern-day use;

- the issue of State supervision of country estate museums has not been settled legislatively.

A significant number of these issues can be regulated at City of Moscow level under the forestalling legislative regulation procedure, in the context of the powers of the City of Moscow State authorities in respect of objects under the joint control of the Russian Federation and its subjects.

The need also exists to bring a number of new concepts and terms into the legislation of the City of Moscow, in particular:

- ‘reserve zone’ – an area, combining zones in which new building and economic activity come under regulation, where building development and architectural restrictions and general requirements for aesthetic appearance are in operation;

- ‘history park’ – a parkland zone with monuments, ensembles and noteworthy places in it, where natural landscape conservation areas are combined;

- ‘museum reserve’ – an historic site, a history park, a reserve zone, cultural heritage properties and other objects that form a complex, purposefully intended to be used as a museum;

- ‘valuable property in an urban environment’ – structures or ensembles that are not architectural monuments but which create an aesthetic visual image of urban spaces in the cultural context  of an historic time.

…

so far as the number of these properties is concerned (6335, including 3516 buildings and structures, 332 facilities, 336 monuments and 2121 areas of ground belonging in their entirety to monuments of history and culture) Moscow indisputably occupies first place in the Russian Federation. And it is specifically from this point of view, rather than with a civil law valuation of the monument as real estate, that it is believed the municipal legislator should approach the problem.

 

… Under Federal law № 73-FZ ‘On the cultural heritage property (monuments of history and culture) of the peoples of the Russian Federation’ dated 25.06.2002 it is stipulated that the regulation of laws of subjects of the Russian Federation covers, in particular:

1. Regulation of questions of:

а) the conservation, use and popularisation of cultural heritage property in the ownership of a subject of the Russian Federation (sub-clause 3 of article 9.2);

b) State protection of cultural heritage property of regional importance (sub-clause 4 of article 9.2);

c) the exercise of State supervision in the field of the conservation, use, popularisation and State protection of cultural heritage property (clause 1 of article 11).

2. Establishing a procedure for the creation, funding and implementation of regional programmes for the protection of cultural heritage property of regional and local importance (clause 2 of article 12).

3. Establishing a procedure for the funding of measures for the conservation,  popularisation and State protection of cultural heritage property from money obtained from the exploitation of cultural heritage property in the ownership of a subject of the Russian Federation (clause 3 of article 13).

4. Determining a procedure for taking the decision to include cultural heritage property of regional importance and local importance in the unified State register of cultural heritage property (paragraph 4 of clause 9 of article 18).

5. Establishing a procedure for changing the category of historic and cultural importance of cultural heritage property of regional importance (clause 2 of article 22).

6. Determining a procedure for setting up information boards and signage to cultural heritage properties of regional importance (clause 2 of article 27).

7.  Establishing a procedure for affirming the boundaries of protection zones around cultural heritage properties of regional and local importance, regimes for land use and building development regulations within the limits of these zones  (clause 3 of article 34).

8. Determining a procedure for planning and carrying out work to conserve cultural heritage properties of regional and local importance (clause 4 of article 35).

9. Establishing a procedure for restricting or prohibiting vehicular traffic in the grounds of cultural heritage properties or in the protection zones around them in the event of a threat that their integrity and state of preservation may be violated (article 38).

10. Establishing a procedure for issuing tasking for work to be done to conserve a cultural heritage property and giving permission for work to be carried out to conserve properties, and also for agreeing project documentation for work to be carried out to conserve a cultural heritage property of regional importance (clause 2 of article 45).

11. Establishing a regime for use of the grounds of cultural heritage properties (article 46).

Authorising a State authority of a subject of the Russian Federation to bring about agreement on a procedure for the organisation, boundaries and conservation regime of a history and culture reserve of federal importance, and also establishing the procedure for organising a history and culture reserve of regional importance, its boundaries and upkeep regime (clause 3 of article 58).

All the above questions should find their solution in the draft law of the City of Moscow ‘On monuments of history and culture in the City of Moscow’.

 

 

 

In this chapter, above all, the aims and objectives of the law should be defined, and also principles established for the activity of the State authorities of the City of Moscow in the field of the conservation, use, popularisation and State protection of monuments of history and culture.  In addition, in the ‘General provisions’ chapter (in a separate article) the conceptual framework for the law should be set down in carefully worded detail. It is essential when this is done that formulations of concepts and terms should agree (be harmonised) with the terminology of federal legislation on cultural heritage real estate and the building development legislation of the Russian Federation.  At the same time, it stands to reason, the content of this article should not consist simply in a repetition of the relevant provisions in federal legislation. On the contrary, in the context of a conceptual framework it is necessary to define such concepts, so important to the safeguarding of municipal monuments of history and culture, as ‘property of value to the urban environment’ (with a separate category therein for specially valuable properties), the ‘history park’, ‘reserve zone’, ‘museum reserve’ etc.

 

 

It seems that this Chapter should, above all, provide a framework in which to reflect the powers of the following State authorities and officials, in the realm of State protection, conservation, use and popularisation of monuments of history and culture:

1.      The Moscow City Duma

2.      The Mayor of Moscow

3.      The Moscow Parliament

4.      Bodies specially empowered to fulfil the laws of Moscow and the Moscow region in the field of state protection, preservation, use and popularisation of monuments of history and culture

5.      Bodies specially empowered to fulfil the laws of Moscow in the field of urban planning and architecture

6.      Bodies specially empowered to fulfil the laws of Moscow in the field of land laws

7.      Bodies specially empowered to fulfil the laws of Moscow in the field of the protection of the environment

…

 

This Chapter should be devoted in the first place to issues to do with securing and protecting those rights of residents of the City of Moscow in the cultural sphere that are directly linked to the use of cultural heritage real estate (especially to ensuring the exercise of these rights - in particular ensuring the accessibility of the properties in question). In his way the provisions of this chapter will be closely tied up with the regulations in building development legislation that are dedicated to protecting of the rights of Muscovites when building development decisions are implemented. However, this chapter will not duplicate but, rather, develop the latter. In addition, this is the chapter where provisions will find their place that are dedicated to ensuring that the State fulfils its duties in the sphere of safeguarding monuments (which is also one of the methods of guaranteeing cultural human rights).

It goes without saying that attention should be given to issues as vital to the City of Moscow as the form and extent of participation by local government authorities and officials in the business of the conservation, use, popularisation and State protection of monuments of history and culture, and also the role of public opinion in this sphere.  Once there are clearly defined terms of reference for the City’s own municipal bodies and the role of community organisations is in this field is clearly expressed, the legislator will be able to create the basis in law for residents of the city actually to fulfil everyone’s constitutional duty to take trouble over the preservation of historical and cultural heritage and take care of monuments of history and culture.

Lastly, this chapter should establish a model - fit for implementation in the conditions that apply in the City of Moscow – for the interaction between State authority and the community as a whole in the business of caring for cultural heritage real estate. In particular, it is contemplated that issues will be regulated to do with the creation and the activity of competent public authorities in this sphere, consisting of scientifically qualified experts, by establishing their actual, rather than their formal, functions and powers.

 

 

Despite the fact that the idea of comprehensive State protection for the City of Moscow as historical heritage cannot at present be put into effect (by virtue of the unsuitability of the model proposed in this case by the federal legislator for cities of federal importance), State protection itself for monuments of history and culture in the City of Moscow should be of a comprehensive nature. This presupposes coordination when it comes to the effect of legislative and administrative mechanisms in the area of culture, architecture and building development, land use and ecology. The regulations necessary to ensure such coordination (based on legal regulation being mutually interlinked, and subject authorities with relevant powers cooperating with each other in all the areas listed) should also be established in this chapter.

 

 

This Chapter should - to the maximum extent possible - state the specifics of the subject, and also establish a specific list and regulate issues - within the city’s competency – to do with the content of measures to safeguard monuments of history and culture (including their identification, investigation, registration, categorisation, awarding them a particular protected status and monitoring their condition, and also providing а proper basis in law for the exercise of control in this area.

 

 

This Chapter should regulate – within the limits of the legislative powers of the City of Moscow – issues to do with the maintenance, conservation, repair, restoration, reconstruction and renovation of monuments of history and culture (taking into account the particular features of the City of Moscow), and also issues to do with municipal State control in this area.

 

 

The subject of regulation in this case will be issues under the authority of the City of Moscow to do with the use of cultural heritage real estate (in particular, the activity of City of Moscow authorities in this field) and control of this use.

 

 

This chapter should regulate issues to do with the popularisation of monuments of history and culture in the City of Moscow, including interaction between the State and the public in this area.

 

 

This chapter should – within the limits of the overall powers of the City of Moscow - in reciprocal linkage with the norms of land, building development and ecological legislation, regulate issues to do with defining, legally regulating the status of, monitoring appropriate use of, protecting and conserving grounds and protection zones around cultural heritage property.

 

 

This chapter should (basically under the forestalling legislative regulation procedure) determine at the municipal level the status of history and culture reserves under Moscow’s authority, whose legal position is regulated by federal legislation in an extremely fragmentary way and, at the present time, leaves considerable room for law to be created at the sub-federal level.

 

 

The subject of provisions in this chapter is evident from its very title. It is contemplated that here detailed regulation will be laid down (within the limits of the city’s legislative competency) of the specifics of funding - from the public purse and elsewhere – activity for the conservation, use, popularisation and State protection of monuments of history and culture, the specifics of accepting, funding and monitoring the use of money in the context of targeted municipal programmes in this field, and also the specifics of granting privileges of a financial nature in this area to provide incentives.

 

It is contemplated that this chapter will be dedicated to the timescales and procedure for the Law to enter into force, and also the timescales and procedure for bringing other regulatory legal enactments of the City of Moscow into conformity with it.