Preserving an archaeological reserve instead of building a residential complex on a burial ground: the court decides the fate of Kitaevo

11.02.2024

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The Armed Forces of Ukraine are fighting on the front line to preserve the independence and territorial integrity of our country. At the same time, the Office of the Prosecutor General and the Ministry of Culture and Information Policy of Ukraine, together with the public, are trying to preserve a unique archaeological monument of national importance – the historical area of the Archaeological Reserve – for science and our descendants in the courts: «Kitayevo within the limits of the settlement and three mound groups». Today, it is the only archaeological reserve within Kyiv that has survived to this day. On February 7, the Kyiv Commercial Court held a
hearing on the merits of case No. 910/14549/23. The judge heard all the parties and adjourned the hearing until February 21, 2024, when the judge will review the evidence of the parties.

Residential development on a burial ground

The lawsuit filed by the Prosecutor General’s Office and the Ministry of Culture and Information Policy of Ukraine against the Kyiv City Council concerns a land plot in the Kyiv Kyiv Historical Area with cadastral number
8000000000:79:089:0003. The area of the plot is 4.7647 hectares and it is only a part of the Archaeological Reserve: "Kitayevo within the boundaries of the settlement and three burial mounds", which contains
the remains of the settlement, the remains of an ancient Russian fortress, a burial mound and a settlement, the land of which was leased by the Kyiv City Council deputies. For the part of the land leased to entrepreneurs, the Kyiv City Council’s decision of 17 years ago changed the designated purpose of the site: «for the construction of residential and public buildings, shopping and entertainment centers, office centers and parking lots».

At the request of the Prosecutor General’s Office, a lawsuit was filed in the interests of Ukrainian citizens to return to state ownership (the property of the entire Ukrainian people) the land plots on which the archaeological site of national importance is located. The goal was to preserve the valuable historical, archaeological and cultural heritage for the benefit of current and future generations, and to protect against possible development of particularly valuable historical and cultural lands.

«The settlement that is the subject of the prosecutor’s office’s defense in this lawsuit is the village where the inhabitants’ dwellings were located. It is located at the foot of the settlement on the left bank of the stream and occupies the northwestern part of the monument. We are talking about an ancient Russian city that played an important role in the defense of Kievan Rus», — the prosecutor said in his speech.

He added that scientific research conducted in the area since 1854 allows us to assert the presence of an ancient
Russian city here:

1895 — the site was marked on the archaeological map of the Kyiv province.
1911-1914 — the site was investigated by archaeologist O.D. Ertel, whose research in 1914 resulted in the military-archaeological plan of the Kitaiv settlement and the surrounding area.
1947 — archaeologists discovered the first dwelling within the settlement.
1961 — archaeologist N. Linka (expedition «Great Kyiv») explored the mounds.
1973 — a study was conducted, which became the basis for the production of a passport, on the basis of which the monument was registered with the state.
That year, archaeologist I. Movchan investigated the settlement in detail and localized it on the ground. «The settlement stretches 700-800 meters along the stream, and 150-200 meters up from the stream. The area of the settlement is more than 15 hectares», — Movchan’s report says.
1988 — archaeologists Movchan and Pysarenko explored the settlement and burial ground.
1998 — archaeologists Movchan and Klymovskyi investigated the settlement and the cemetery.
2013, 2017, 2020, 2021, 2022 — archaeologists Kozyuba, Ivakin, Serov, Pereverzen, Zotsenko, Baranov conducted research on various parts of the site. During the research, they found ceramics of the X-XII centuries, metal products, fragments of bracelets, and the remains of an ancient dwelling.

«Given that this monument has been studied in detail for over 100 years, the state registered it in July 1965 by a resolution of the Council of Ministers of the Ukrainian SSR. In 1966, a passport was drawn up for the monument, which contains the name of the monument, the date of the monument, the addresses of the location, and a detailed description. Since this is the main evidence in the case, the description states: «The settlement appeared in the tenth century. Researchers Bidzilia, Movchan, and Kubyshev suggest that it was rebuilt by Prince Volodymyr during the construction of a defensive line around Kyiv. A settlement and a cemetery directly related to the hillfort appeared next to it. There is also a mention of the 1910-1914 research of the Ertel site», — the prosecutor continued during his speech at the court hearing.

In the general assessment of its social, scientific, and historical significance, the passport of 1986 states: «The Kitayevsky complex, which includes a settlement, a settlement, and a burial ground of the 10th-13th centuries, is the only one that has been preserved within the boundaries of Kyiv. Its study makes it possible to speak with high probability about the defensive structures around ancient Kyiv, to establish the significance of the settlement in the defense of the city, to trace the change in funerary rites in Kievan Rus with the advent of Christianity, to highlight a number of problems related to the formation of the ancient Russian outskirts, which are organically linked to the problem of the historical development of ancient Kyiv, and socio-economic relations in Kievan Rus».

In modern times, after the adoption of the Law of Ukraine on the Protection of Cultural Heritage, the Cabinet of Ministers’ resolution of December 27, 2001, included the archaeological monument «Kytaiiv Settlement and Mound Cemetery» in the State Register of Immovable Monuments of Ukraine. The status of the monument was also determined as a nationally significant monument and its address was determined: 15 Kitaivska Street, Kyiv. The monument is also listed in the register updated in 2009, which was approved by a resolution of the Cabinet of Ministers of September 3, 2009.

What is the violation of the law?

The Law of Ukraine on the Protection of Cultural Heritage stipulates that all archaeological heritage sites are state property, and the land on which they are located is state-owned. Such land is classified as land for historical and cultural purposes and may be used exclusively for the purpose of protecting monuments and their scientific research. The Law of Ukraine on the Protection of Cultural Heritage also defines the sole owner of archaeological sites and the land on which they are located as the State.

«That is, such objects cannot be in either municipal or private ownership, as they are restricted in civilian circulation. However, by a decision of the Kyiv City Council dated November 29, 2007, a land plot with a total area of 4.7 hectares was leased to the Kyiv Vegetable Factory Joint Stock Company for 15 years. Based on this decision, the land plot was classified as residential and public development land. Subsequently, lease agreements were concluded, which provide for the construction of shopping and entertainment centers, office centers, residential buildings and parking lots», — the prosecutor said.

During the trial, it turned out that the Kyiv City State Administration was in no hurry to conclude a lease agreement with the Kyiv Vegetable Factory after voting to lease the land plot in Kitaevo. The tenants had to seek to have the agreement signed through a court decision in 2008.

Position of the Kyiv City Council and the Joint Stock Company

Currently, a representative of the Kyiv City Council representing the defendant believes that the Ministry of Culture did not declare its rights to the territory when the Kyiv local authorities concluded the agreement. The local government lawyer does not know the subject matter of the previous lawsuits. Before the hearing on the merits, she filed a motion to dismiss the claim on the grounds that the statute of limitations had expired.

«We object to the lawsuit. The prosecutor has not expressed a position on why the state does not fulfill its duties and does not adhere to the principle of good governance, such as registering the right to state-owned land, forming the boundaries and creating an archaeological monument as such and entering it into the relevant registers with the definition of boundaries… We believe that for the period of allocation of the disputed land plot and the decision to conclude a lease agreement, the land plot in question should be classified as land of historical and architectural designation», — or should have the status of any value.

Also, according to a representative of the Kyiv authorities, the law allows construction in protected areas.

The position of the tenant, Kyiv Vegetable Factory, is presented in the video.

How did the law violation occur?

This question was answered exhaustively by Oleksandr Dyadyuk, a well-known Kyiv-based defender of recreational areas and the capital’s cultural heritage, a lawyer.

«I have already encountered such schemes of the Kyiv City Council on defense land. To confuse matters, I don’t know whether it’s deliberate or not, intentional or greedy. There is a certain territory that cannot be in communal ownership (defense land, or in this case, an archaeological site), they form a land plot, including the territory (with a protected status – Ed.) and add some land outside (the territory with a protected status – Ed.) of the really communal property, form this land plot, give it a cadastral number. It turns out that this land plot includes both land that cannot be communal property and land that can be communal property. The graphic materials provided to the court show that most of it is monuments, and then there is a little bit of communal land on the edge», — Oleksandr Dyadyuk said during the hearing.

The lawyer noted that the joint-stock company has a rather disingenuous position, claiming that they did not know that they were leasing land under state protection.

«The defendant says that if it is issued in kind with clear geodetic indicators in the cadastral plan, as the coordinates are now… I would like to point out that the modern cadastral system and modern geodetic boundaries for establishing the coordinates of a land plot are established by satellite and the error is within 10 cm. Such methods and modern cadastres appeared about 20 years ago. Before that, they did not exist. But humanity somehow determined the boundaries of land. Back then, descriptive methods existed, and archaeological monuments from tsarist times were described. There are a lot of materials in the case file that describe the boundaries. Well, there were no such geodetic methods 30 years ago! It turns out that, according to the representative of the vegetable factory, since the introduction of the obligation of a modern cadastre with geodetic data, and the monuments have not yet been registered, because they cannot be registered in one day, it turns out that all monuments in Ukraine have disappeared. No, Your Honor, they have not disappeared. Because, according to the final transitional provisions, those monuments that existed under the old legislation remain», — Dyadyuk said.

According to Dyadyuk, the defendant did not provide evidence that would contradict the documents presented in court by the Prosecutor General’s Office and the Ministry of Culture and Information Policy of Ukraine. In his opinion, when allocating the land plot in Kytayevo for lease, in 2007, specialists from the relevant departments of the Kyiv City State Administration should have identified and separated the boundaries of the municipal territory and the territory that has the state protection status of an architectural monument, and only that which is outside the monument could be leased.

Archaeologists’ opinion

Representatives of the Institute of Archeology, who directly conducted scientific excavations on the territory of the Archaeological Reserve, are the third party in the process: «Kitayevo within the settlement and three mound groups». They noted that any economic activity on these historical lands violates not only the laws of Ukraine, but also ratified international conventions, which, as a candidate country for EU membership, Ukraine must adhere to.

In particular, we are talking about:

Convention on the Protection of the Archaeological Heritage of Europe
Convention concerning the Protection of the World Cultural and Natural Heritage
European Landscape Convention.

According to them, the Kyiv City Council’s decision to lease the Kitaevo land directly violates the international conventions signed by Ukraine.

«The situation with Kitayevo is even more striking than the Old Russian settlement. In fact, this is the only monument of the Old Russian period that remains with very little damage in the city of Kyiv. During the time of Independence, and much earlier, many archaeological monuments were unfortunately destroyed. In fact, the entire territory of the ancient Russian city of Yaroslav and the city of Volodymyr was completely built up. We can all see how the territory from the Golden Gate to the Church of the Tithes was still built up in the 19th century. The territory of Kitaevo is, in fact, the only such relatively small piece of the ancient Russian city that can still be shown to our descendants. Our descendants will despise us for the three things we did or did not do: for the Transcarpathian forests, for amber, and for archaeological sites that we actually not only failed to protect but destroyed as completely as possible», — said archaeologist Viacheslav Baranov.

Chinese people A settlement on a coastal terrace and a settlement on a mountain

Defensive escarpment on the northwestern slope of the settlement. Photo of 2012.

Entrance to one of the caves of the lower level of the underground complex of the settlement. Photo of 2012.

Plan of the cave under the central part of the Chinaiv hillfort

He noted that Kitaevo needs to be preserved despite the difficult circumstances in the country, as it is a unique site even in Europe. There are successful examples in the world of how the remains of ancient settlements are carefully preserved for the sake of science and for the sake of future generations, and the Kitaevo Reserve within the settlement and three mound groups can be a worthy addition to such examples.

It is interesting that according to the descriptive materials presented on the website of the Museum of the Tithe Church, developed by the Ministry of Culture of Ukraine, in the section «Kytayiv – the historical and archaeological pearl of Kyiv», from which Active Citizens took the illustrative materials for this publication, it is written: «The Kytayiv archaeological complex is an archaeological monument of national importance (No. 260026-N), which has several components: an ancient settlement, two mound burial grounds, a settlement, and a complex of caves, which together occupy a plot of 67 hectares».

Mounds of burial mounds near the settlement. Photo of 2012.

«Cemetery 1 near the hillfort is located quite heavily. It occupies not only an elevated part of the mountain, but partially even the slopes, although there is a lot of free space on a flat plateau nearby. A significant part of the grave mounds is damaged by robbery pits of the nineteenth and twentieth centuries, as well as dugouts from the Second World War. Walking along the path along the mound group, we reach its end, where we can see a segment of an ancient rampart and ditch – the remains of a fortification of an earlier time, perhaps of the Early Iron Age (Scythian)», – the publication says.

In this vein, another open question remains: how appropriate is any construction on the bones of our ancient ancestors? But this issue is not the subject of this trial, the next hearing of which is scheduled for February 21, 2024, at the Kyiv Commercial Court.

Iryna Kovalchuk, member of the Public Council at the Kyiv City State Administration, Deputy Head of the Public Council at the Dniprovskyi District State Administration in Kyiv