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Artistic freedom at risk? Malta Foundation’s action against Ministry goes to trial

On 25 March, a Warsaw court will hold the first hearing in the case brought by the Malta Foundation against the Ministry of Culture and National Heritage on account of the Ministry’s failure to pay a PLN 300,000 dedicated subsidy for the 2017 Malta Festival Poznań. The Foundation is represented by attorneys with Hogan Lovells, who responded to a request for pro bono assistance made by the Helsinki Foundation for Human Rights.

In 2016, the Malta Foundation and the Ministry of Culture and National Heritage entered into a three-year contract for the organisation of the Malta Festival Poznań, which obliged the Ministry to pay annual dedicated subsidies. However, in 2017, the Ministry did not pay a subsidy of PLN 300,000 because Olivier Frljić, a stage director and the author of the controversial play The Curse, became one of the Festival’s Curators. The production of The Curse raised protests of certain conservative groups and the play was said to insult religious feelings.

“This is landmark litigation. The matter is one of the first examples of a refusal of a dedicated subsidy due to the involvement of a particular artist”, says Adam Klepczyński, Helsinki Foundation for Human Rights. “The Constitution of the Republic of Poland guarantees that everyone can enjoy the freedom of artistic expression and may freely use cultural goods. In Poland, culture is financed mainly from the national budget so a decision denying a subsidy can be considered a measure of ‘soft censorship’. This is putting pressure on artists to give up certain activities, like staging a play”, he adds.

“The amount in controversy is PLN 300,000, which is the money not paid to the Malta Foundation for the 2017 festival. However, this litigation was started with a more general purpose in mind: we want the court to rule that a minister may not take ideologically-driven, arbitrary decisions about the agenda or shape of a cultural institution. In 2017, the key role was played by the greatest allies of the festival: artists and the audience. It started with an auction proposed by Mariusz Wilczyński, the second wonderful gesture was the crowdfunding action Become the Minister of Culture – more than 1000 people took part in it, donating 300,000 zloty for the festival. Still, we think this is about something more important than money, so we decided to challenge the Minister’s decision in court. As the Malta Foundation, we only want law and justice”, says Michał Merczyński, Director of the Malta Festival Poznań and President of the Malta Foundation.

“The Minister of Culture and the Malta Foundation have concluded a three-year agreement for the co-financing of the festival. The Foundation fulfilled all its contractual obligations. At the same time, the Minister failed to perform the agreement and refused to pay the promised funds. The Foundation only wants the agreement to be performed. Agreements must be kept, as the ancient legal maxim reads. A contract must be adhered to by everybody signing it, and especially by state bodies and the Minister of Culture”, emphasises Dr Wojciech Marchwicki, counsel with Hogan Lovells’ Warsaw office.

Decisions of public authorities in the area of culture should be based on transparent rules and elaborately justified, and artistic projects supported by the state must present different points of view.

The state must not be allowed to take actions that aim at blocking the presentation of certain content or crippling the operations of a given cultural institution only because the institution presents ideas that are not shared by those in power.

The case is conducted by HFHR’s Strategic Litigation Programme.

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