Malta Festival Poznań case: court orders Ministry to pay subsidy of 300,000 zloty

The Regional Court in Warsaw has awarded the Malta Foundation the amount of PLN 300,000 plus interest to be paid from the State Treasury represented by the Minister of Culture and National Heritage on account of the unpaid dedicated subsidy originally granted in 2017 for the organisation of that year’s 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.

Giving the verbal reasons for the decision, the court indicated that this obligation was of a purely contractual nature. The court also found that the provisions of the 2016 agreement for the payment of subsidies earmarked for the organisation of the Malta Festival Poznań in 2016-2018 were clear and unambiguous. The court noted that the agreement entitled the Ministry to reduce the fee only in strictly defined situations but emphasised that none of these situations had occurred in the case at hand. The court also pointed out that the Ministry had known that Oliver Friljić would be the Festival’s Curator as early as in 2015, so his appointment should not have led to the refusal of the subsidy for the Malta Foundation. The judgement is not yet final.

First hearing

During the first hearing on 25 March, the Foundation’s procedural representative pointed out that although the proceedings concerned primarily the issue of the Ministry’s non-performance of the contract, the circumstances of the case might also suggest the violation of the artistic freedom guaranteed by the Constitution, in the form of the so-called ”soft censorship”. The legal counsel for The General Counsel to the Republic of Poland, who represented the Ministry, pursued for dismissing the complaint in its entirety, indicating that the Ministry had the full right not to pay the subsidy for the festival organization in 2017.

The timeline

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”, said 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 explained.

“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”, said 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”, emphasised 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.