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Who authorized the demolition of the VIP terminal?

Аэропорт123Two years have passed since the infamous demolition of the VIP terminal (old building) of the Airport. A new one has already been built. But many unknowns remain. The Ecological Society Green Salvation (hereinafter—Ecological Society) is trying to figure out the legal aspects of this story. Moreover, the European Bank for Reconstruction and Development (hereinafter—Bank) made a significant contribution to the destruction of the monument!

A simple question: who allowed the demolition of a historical and cultural monument of local significance? We expected to receive an answer to it without difficulty, but the story turned into a real detective story and escalated into a legal battle. 

The official version is very clear

The flow of tourists eager to see the southern capital and its environs is growing. A new airport terminal is needed to increase capacity and improve services. The old building, built back in 1947, is preventing construction. It cannot be demolished, because it is a monument. What can be done in this situation? According to the law “On the Protection and Use of Historical and Cultural Heritage Objects,” the old building can be relocated.[1] The VIP terminal needs to be relocated 400 meters to the east and everyone will be happy. The authorities decided to do so.

Article 29 of the law allows such a procedure. Relocation (перемещение) is “a change in the position of a historical and cultural monument in space.” It is permitted in exceptional cases, if the monument has been destroyed by more than seventy percent, or has lost its historical and cultural significance, or if relocation will improve “the conditions for its preservation.”

The first two cases are clearly not suitable. What about the third case? Doubtful that security will actually be improved? However, it is still legal.

Since the VIP terminal is a monument of local significance, the decision on relocation is made by the local executive body “based on the conclusion of a historical and cultural examination … in agreement with the authorized body.” On November 11, 2020, the Akimat of Almaty adopted resolution No.4/492 “On the relocation of the historical and cultural monument of local significance «Airport (International Lines Airport»).”

Аэропорт новый 6What was assigned to the Department of Culture of the City of Almaty?

Such an unusual operation for Almaty could not be left to chance. Everything must be according to the law. The above-mentioned Article 29 states “individuals and legal entities who have received a decision, when moving or changing a historical and cultural monument, are obliged to ensure the conditions for its preservation.” Local executive bodies must record the movement of the monument.

Therefore, the resolution of the Akimat in paragraph 2 states: to the Department of Culture:

“1) when relocating, ensure the integrity and safety of the monument;

2) take other measures arising from this resolution.”

Apparently, officials consider the terms “relocation,” (перемещение) and “demolition” (снос) to be synonymous.

The result is well known to all townspeople. Despite the protests of specialists and the public, the monument was demolished, but officials continue to assure us that it was relocated.

The question inevitably arose: how did the Department of Culture ensure the safety of the monument?

Аэропорт1234We decided to ask

Why does the Department insist on relocation? What has the Department done to ensure the integrity and safety of the monument? Perhaps at least some parts of the monument were relocated? We sent two letters. The Department provided a detailed explanation. “The building will be recreated and retain the original appearance of the following decorative elements.” Further, in the letter these decorative elements were listed.[2] A little later, we were further explained that it is “the decorative elements that determine its [the VIP terminal’s] cultural and historical significance!”[3] Doesn’t it matter that the building was built in 1947?

It followed from the letter that it was decided to relocate only the original decorative elements. However, the Akimat’s resolution talks about relocation the entire monument. What was the basis for this decision? Allegedly, the conclusion of a specialized institution engaged in restoration “Kazrestavratsiya” dated October 31, 2022! This document, like the conclusion of 2020, was commissioned by the Department of Culture. The second document, which is also supposedly the basis for the decision, is the protocol of the special commission of the Ministry of Culture and Sports No.6 dated November 1, 2022. It was drawn up a few days before demolition!

In February 2023, the President of Almaty International Airport Ersoy Alp Er Tung reported that the historical building, which previously housed the VIP terminal, “is now being moved piece by piece and its double (двойник) is being assembled.”[4] So is it relocated or recreated? Why individual elements and not the whole monument? The Akimat’s resolution did not mention the relocation of individual original elements. It says about the monument as a whole! A new question has arisen. Who gave permission for demolition the monument?

In addition, the Department did not say what exactly it has done to ensure the integrity and safety of the monument. We have sent a third request. The officials ignored him. We were left no choice.

On May 15, 2024, the Ecological Society appealed to the Specialized Interdistrict Administrative Court of the City of Almaty with a demand to oblige the Department to provide information on the measures taken to ensure the safety of the old Airport building. 

The court decided

On July 22, the court made its decision. The Department’s response, received after the Ecological Society applied to the court, “is a formal reply, since it does not contain information about the actions taken by the defendant to implement the decision.” Therefore, the court declared illegal the untimely provision of information to the Ecological Society.

However, the court did not satisfy the demand of the Ecological Society to oblige the Department to report on the measures taken. Firstly, at the request of the court, “the defendant complied with the plaintiff’s request, providing him with all the information, documents available to the Department confirming the execution of the Akimat’s resolution in the part assigned to the Department.” That is what the defendant argued. The judge did not see the papers and did not know their contents!

Secondly, “the court recognizes as justified the statements of the defendant’s representative that the Department does not have any documents other than those presented to the plaintiff and the court.” On what basis did the judge make this conclusion? He draws this conclusion on the fact that “the fire in the building of the Akimat of the City of Almaty, which occurred in January 2022, is a well-known fact. Accordingly, the defendant’s allegations about the loss of documentation, including those confirming the implementation of measures to implement the Akimat’s resolution, are not questioned.” However, no one can confirm that all the documents were completely burned.

What do the documents show?

Finally, through the court, we received the long-awaited information. Including the above conclusions and protocol. However, among the papers there are no documents of the Department for 2023-2024. There are no documents for November-December 2022, when the demolition took place. An inquisitive reader will ask: ‘What follows from this?’ The fact is that the Department was obliged to control the process of dismantling the building or at least its individual decorative elements.

Dismantling a historical monument does not mean simply tearing off or cutting off certain parts of the whole. This complex process requires special knowledge, technology and equipment. All dismantled fragments must be recorded, an inventory drawn up, and ensured that they are properly packaged and stored in conditions that ensure their integrity. An installation does not mean that decorative elements can simply be nailed or welded. They must be installed using special techniques and technologies.

Among the documents received in accordance with the court decision there is no information about the above actions of the Department. During the trial, representative of the Department also argued that the Department was not obliged to exercise control. He argued this despite the fact that control is part of the officially approved official functions of the Department, prescribed in the “Regulations on the municipal state institution Department of Culture of the City of Almaty.”

We found the most interesting information in the above-mentioned conclusions made by the specialized institution “Kazrestavratsiya” of the Ministry of Culture and Sports dated October 26, 2020 and October 31, 2022.

The 2020 conclusion states “a mandatory condition when agreeing to relocation the airport building must be the preservation of the image of the monument and its use in accordance with its aviation-related purpose!”

In the 2022 conclusion, approved a few days before the destruction of the building, it is written “an acceptable way to preserve a historical and cultural monument is its relocation to a new location, while observing all the technologies and methods of its construction.” In conclusion, it is stated “the monument must be relocated.” Not a word about demolition! The experts only agreed on “relocation”! How could their decision become the basis for demolition?

The above-mentioned Protocol No.6 also does not say a word about the demolition of the VIP terminal. Perhaps there are secret expert articles or protocols that were not provided to either the court or us?

Therefore, based on the facts at our disposal, we draw the following conclusions.

There was no reason to demolish the monument. There is no decision on demolition among the documents received![5] The Department did not fulfill the task assigned to it by the Akimat resolution.

In the “Certificate of acceptance of the facility into operation” (the new VIP terminal building) dated April 29, 2024 and its annexes, the facility is called “relocation of the existing business terminal to a new site, with the demolition of existing buildings, and structures at the international airport Almaty. Increased level of responsibility.” The basis is the resolution of the Akimat dated November 11, 2020 “On the relocation of the historical and cultural monument of local significance “Airport (International Lines Airport).”

From this document, it follows that construction work began in June 2022 before receiving the expert conclusions and protocol No.6!

Now a copy of the building, and not the original, is listed in the current State List of Historical and Cultural Monuments of Local Significance in the City of Almaty at number 65.[6]

Who authorized the demolition of the old Airport building? The question remains open.

Questions for the Bank

Finally, what do the specialists of the European Bank for Reconstruction and Development think about this situation? The Bank finances the “Almaty International Airport Expansion Project,” as part of which the VIP terminal was demolished. Sorry, “relocated.”

It was the experts invited by the Bank in June 2022[7] who stated, “a) the VIP terminal is not an important cultural heritage; b) the building belongs to a reproducible cultural heritage and its main structural elements can be dismantled and preserved.”

The VIP terminal is, of course, not the Egyptian pyramids or Notre Dame Cathedral. However, paragraph 36 of the Bank’s 2014 Environmental and Social Policy states “an integral element of all IRs [implementation requirements] is the requirement to comply with national legislation.” In the legislation of Kazakhstan, there are no concepts of “unimportant cultural heritage” and “reproducible cultural heritage!”

The experts invited by the Bank arbitrarily interpreted the norms of legislation of Kazakhstan and were guided by provisions that have no legal force in our country.

Although the Summary of Answers to Public Questions states the following: “The relocation of a historical and architectural monument does not contradict the requirements of the law. This was confirmed by the Department of Culture, where demolition of historical monuments is prohibited, but law permits relocation. The building will not be demolished (снесен), but will be relocated to a new location. There is existing world practice.”[8] 

© Ecological Society Green Salvation, 2024.

_____________________________________

[1] Construction terminology. Technology and organization of construction (SP RK 1.01-102-2014). According to clause 3.702 SP RK 1.01-102-2014: “Moving buildings: A set of construction works, including the installation of foundations in a new location, preparing a rail track, separating the building from the foundation, placing a rigid metal structure under the walls and columns of the building, installing devices that provide normal conditions for people in the building, moving the building along the rail paths using electric winches”: https://online.zakon.kz/Document/?doc_id=36740535&pos=1;-16#pos=1;-16 (date of access to the site September 25, 2024).

[2] Response of the Department of Culture of the City of Almaty dated December 12, 2022 (Ref. No. 03.4-05/ZT-K-63) to the letter of the Ecological Society “Green Salvation” dated November 28, 2022 (Ref. No. 088 and 089).

[3] Letter from the Department of Culture dated July 9, 2024 (Ex. No. 03.4-15/37-2024-03659747) to the Ecological Society Green Salvation.

[4] How the old Almaty airport building is being moved: https://krisha.kz/content/news/2023/kak-perenosyat-staroe-zdanie-aeroporta-almaty (date of access to the site September 25, 2024).

[5] Rules for issuing a decision to carry out a set of works on post-utilization of objects (demolition of buildings and structures), clause 6. Approved by order of the Minister of Industry and Infrastructure Development of the Republic of Kazakhstan dated April 29, 2021 No.202: https://adilet.zan.kz/rus/docs/V2100022672.

[6] Resolution of the Akimat of the City of Almaty dated March 17, 2021 No.1/191 “On Approval of the State List of Historical and Cultural Monuments of Local Significance of the City of Almaty (as amended on September 9, 2021): https://adilet.zan.kz/rus/docs/ V21R0001693#z3 (date of access to the site September 25, 2024).

[7] See: Almaty International Airport expansion: https://www.ebrd.com/work-with-us/projects/psd/51186.html; Almaty Airport Expansion—VIP Terminal Building. Heritage Site Summary, June 2022.

[8] Expansion of Almaty airport. Environmental and Social Impact Assessment Report, August 2021. Appendix A.8 Concerns and suggestions expressed by the public, NGOs and experts regarding the VIP terminal, p.405: https://webcmsala.tav.aero/files/1654768544_RUSSIAN%20ver.%20Almaty%20Airport%20Expansion%20ESIA%20Rev%20D%20for%20issue.en.ru.pdf.

Conventions, News

Obstacles to the implementation of the Aarhus Convention in Kazakhstan

The Special Rapporteur on human rights and the environment “has completed a series of six thematic reports on the substantive elements of the human right to a clean, healthy and sustainable environment, including clean air, safe and sufficient water, healthy and sustainably produced food, non-toxic environments, healthy ecosystems and biodiversity and a safe, livable climate. He would like to seek inputs on the procedural or participatory elements of the right to a clean, healthy and sustainable environment, including access to information, public participation and access to justice with effective remedies.”[1]

* * *

Responses to the questionnaire of the Special Rapporteur on human rights and the environment

 

To the Special Rapporteur on human rights and the environment: hrc-sr-environment@un.org

From Ecological Society “Green Salvation,” Almaty City, Republic of Kazakhstan:  gsalmaty@gmail.com   

 

The answers are given based on the practical human rights activities of the Ecological Society “Green Salvation,” (hereinafter—GS) and therefore the answers are given to just a few questions. The answers reflect only the opinion of the organization.

 

Questions

  1. What are States’ obligations—and businesses’ responsibilities—related to the rights to access information, public participation and access to justice with effective remedies in environmental matters? What are the major barriers to the full enjoyment of these rights?

Responses

The obligations of the State and the responsibilities of business related to rights of access to information, public participation and access to justice are enshrined in the Environmental Code of the Republic of Kazakhstan 2021.[2]

There are a number of significant obstacles to the full implementation of the rights to access information, public participation and access to justice.

 

  1. Subparagraph 5 of paragraph 2 of Article 13 and paragraph 3 of Article 14 of the Environmental Code contradict the norms of paragraph 3 of Article 9 of the Aarhus Convention. In accordance with these articles, the public does not have the right to apply to the court to challenge the legality of actions (omissions) of private individuals that violate the provisions of national legislation related to the environment.

Article 13, paragraph 2: “In order to ensure the right of every person of present and future generations to live in a favorable environment, the state recognizes and guarantees the following rights of the public: …

Subparagraph 5) to apply to the court with an application to challenge the legality of actions (inaction) and decisions of state bodies, local governments, officials and civil servants on environmental issues, including those related to the elimination of environmental damage caused and the suppression of violations of the requirements of environmental legislation of the Republic of Kazakhstan.”

Article 14: “Non-profit organizations in carrying out their activities in the field of environmental protection, in addition to the rights provided for in Article 13 of this Code, also have the right to: …

Paragraph 3) to apply for protection of the rights, freedoms and legitimate interests of individuals and legal entities, including in court, as well as to appeal against the legality of actions (inaction) and decisions of state bodies, local governments, officials and civil servants in the interests of an indefinite number of persons.”

The mentioned norms of the Environmental Code violate and contradict:

— paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan according to which: “Everyone shall have the right to legal defense of his rights and freedoms;”

— paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan according to which: “Everyone shall be equal before the law and court.”

 

  1. The Environmental Code of 2021 does not contain a provision on the mandatory implementation of the environmental impact assessment (hereinafter—EIA) procedure for all types of planned activities. A similar norm existed in the 2007 Environmental Code.

According to paragraph 1 of Article 65 of The Environmental Code of 2021, EIA is mandatory only for activities defined in a special annex to the Environmental Code.

“Article 65. Mandatory nature of environmental impact assessment

  1. Environmental impact assessment is mandatory:

1) for the types of activities and facilities listed in section 1 of Appendix 1 to this Code, taking into account the quantitative threshold values ​​specified therein (if any);

2) for the types of activities and facilities listed in section 2 of Appendix 1 to this Code, taking into account the quantitative threshold values ​​specified therein (if any), if the obligation to conduct an environmental impact assessment in relation to such activities or such facilities is established in the conclusion on results of screening of the impacts of the planned activity;

3) when making significant changes to the types of activities and (or) the activities of the facilities specified in subparagraphs 1) and 2) of this paragraph, in respect of which an environmental impact assessment was previously carried out;

4) when making significant changes to the types of activities and (or) the activities of the facilities listed in section 2 of Appendix 1 to this Code, in respect of which a conclusion was previously issued on the results of screening of the impacts of the planned activity with the conclusion that there is no need to conduct an environmental impact assessment, in cases where the obligation to conduct an environmental impact assessment of such significant changes is established in the conclusion on the results of the screening of the impacts of the planned activity.”

Even for planned economic activities in specially protected natural areas that are subject to international conventions, mandatory EIA is not provided for. This contradicts not only the rules of the Aarhus Convention, but also the rules of Appendix III of the Convention on Environmental Impact Assessment in a Transboundary Context, which defines “significant adverse transboundary impact.”

“While what would constitute a «significant impact on the environment» is not defined in the Convention [Aarhus Convention], some guidance as to how it is interpreted in other contexts can be found in appendix III to the Espoo Convention and other sources related to EIA procedure.”[3]

The restriction introduced in the 2021 Environmental Code has significantly reduced the scope for public participation in decision-making even in the case of significant environmental impacts. In addition, this contradicts the provisions of paragraphs 5 and 6 of Article 3 of the Aarhus Convention, which states:

“5. The provisions of this Convention shall not affect the right of a Party to maintain or introduce measures providing for broader access to information, more extensive public participation in decision-making and wider access to justice in environmental matters than required by this Convention.

  1. This Convention shall not require any derogation from existing rights of access to information, public participation in decision-making and access to justice in environmental matters.”

 

  1. In accordance with the new Administrative procedural and process-related code of the Republic of Kazakhstan 2020 (hereinafter—APPC),[4] too long deadlines for consideration of applications in administrative courts have been introduced.

According to paragraph 6 of Article 138, paragraph 1 of Article 146, paragraph 8 of Article 168, paragraph 5 of Article 169 of the APPC, the consideration period in all instances is approximately 18 (eighteen) months. This is contrary to paragraph 1 of Article 9 of the Aarhus Convention, violating the requirement for “an expeditious procedure established by law” for review of a decision in court.

In 2004, the Aarhus Convention’s Compliance Committee reviewed the GS application. The Committee came to the following conclusions:

“26. The Committee also finds that the lengthy review procedure and denial of standing to the non-governmental organization in a lawsuit on access to environmental information was not in compliance with article 9, paragraph 1.”[5]

Based on this conclusion, decision II/5a was adopted at the Second Meeting of the Parties to the Convention, which states that the meeting of the parties: “1. Endorses the following findings of the Committee: … (b) The lengthy review procedure and denial of standing to a non-governmental organization in a lawsuit on access to environmental information was not in compliance with article 9, paragraph 1.”[6]

In paragraph 21 of the Findings and Recommendations of the Committee on Communication ACCC/C/2004/01 it is stated: “However, as the time and number of determinations with regard to jurisdiction in this case demonstrate, there appears to be lack of regulations providing clear guidance to the judiciary as to the meaning of an expeditious procedure in cases related to access to information.”

The consideration of the GS application submitted to the court in December 2021 lasted 18 months until the end of May 2023. The case described in Communication ACCC/C/2004/01 lasted 11 months (including the 3 months it took to determine jurisdiction).

GS believes that in Kazakhstan it is still lacks regulations that provide clear guidance to the judiciary on the value of expedited procedures in cases involving access to information.

 

  1. Access to justice in Kazakhstan is not fully protected. The decisions of the courts, including the Supreme Court, have not been implemented for years. This contradicts paragraph 18 of the Preamble of the Convention. “[18] Concerned that effective judicial mechanisms should be accessible to the public, including organizations, so that its legitimate interests are protected and the law is enforced,

The eighteenth preambular paragraph contains several important points. The first is that judicial mechanisms should be effective. This includes the notion of the independence, impartiality and professional integrity of the judiciary, which in turn requires the judiciary to have a solid financial base and to be essentially self-regulating. It further requires that the judgements of the judicial authorities should be ultimately enforceable in society.”[7]

 

  1. Government bodies do not provide the population with full access to timely, complete and reliable environmental information. Statistics of GS appeals to government agencies show the following:

Year          Number of         Replies             No replies             Incomplete or incorrect

requests sent      received (%)      received (%)          information provided (%)

(pieces)

2014              189                    67                         33                                60

2015              252                    66                         34                                48

2016              125                    68                         32                                54

2017              223                    70                         30                                39

2018              132                    75                         25                                42

2019              186                    92                           8                                51

2020              129                    91                           9                                60

 

  1. According to subparagraph 1-1) of paragraph 2 of Article 15 of the Constitutional Law of the Republic of Kazakhstan “On the Parliament of the Republic of Kazakhstan and the status of its deputies” of 1995, deputies of parliament have the right of legislative initiative. Article 8 of the Aarhus Convention does not cover laws and amendments to them initiated by members of parliament. “Once the draft legislation is out of the hands of the public authorities and passes to the legislature, it is no longer in «preparation» by a public authority and article 8 would no longer apply.”[8]

 

On behalf of Ecological Society “Green Salvation”

Sergey Kuratov

October 1, 2023.

 

© Ecological Society “Green Salvation,” 2023.

___________________________________________

[1] Promoting Environmental Democracy: Procedural elements of the human right to a clean, healthy and sustainable environment: https://www.ohchr.org/en/calls-for-input/2023/promoting-environmental-democracy-procedural-elements-human-right-clean.

[2] Unofficial translation: https://adilet.zan.kz/eng/docs/K2100000400.

[3] The Aarhus Convention: An implementation guide. Second edition, 2014, p.133.

[4] Unofficial translation: https://adilet.zan.kz/eng/docs/K2000000350.

[5] https://unece.org/fileadmin/DAM/env/documents/2005/pp/c.1/ece.mp.pp.c1.2005.2.Add.1.e.pdf.

[6] https://unece.org/fileadmin/DAM/env/documents/2005/pp/ece/ece.mp.pp.2005.2.add.7.e.pdf.

[7] The Aarhus Convention: An implementation guide. Second edition, 2014, p.35.

[8] The Aarhus Convention: An implementation guide. Second edition, 2014, p.182.