Hogan Lovells Warsaw wins freedom of speech case in Poland

At the request of the Helsinki Foundation for Human Rights, the lawyers from Hogan Lovells Warsaw represented the Malta Foundation in the court case concerning an unpaid subsidy. The Polish Ministry of Culture and National Heritage decided not to follow the terms and conditions of the concluded contract, and refrained from paying out the granted subsidy for the Malta Festival. In its press releases, the Ministry revealed that it had disagreed with performances previously carried out by Mr Oliver Frljić, one of the festival’s curators. The Circuit Court in Warsaw awarded the Malta Foundation’s claim in its entirety. Recently, on 8 July 2020, the Appellate Court in Warsaw dismissed the Ministry’s appeal.

This case has set a precedent. It was the first case in which the Polish Ministry for Culture decided not to pay out a granted subsidy due to its disapproval of one particular artist. A theatre director Mr Oliver Frljić was one of the festival’s curators. He also happened to be the author of the play The Curse, which created a great deal of controversy in some sections of society, and was met with accusations of offending religious feelings.

The Constitution of the Republic of Poland guarantees everyone freedom of artistic expression and freedom to enjoy cultural events. In Poland, culture is financed mainly from public national funds. Leaving the Ministry in sole charge of the decision whether to pay out the granted subsidy creates a risk of the soft censorship. Therefore, it is critical that the Ministry follows the rules to which it originally consented in the concluded subsidy agreement.

In the Malta Foundation case, the court clearly stated that the Ministry violated its obligations. The judge explained that the choice of the curator could not have served as sufficient reason for the Ministry’s failure to pay out the granted subsidy. The contract did not give the Ministry the power to freeze the money because of its, even acute, dislike of Mr Oliver Frljić.

“We are very happy to have won the case in the Court of Appeal! We only wanted law and justice … and this is what we got! We have fought for three years against Minister Piotr Gliński’s censorship, whose “only right” ideology led to the unnecessary costs of this trial, the accrued interest to be paid by the Ministry, the two-year involvement of the Polish courts, and many people’s work. Once again, we wish to thank the Helsinki Foundation for Human Rights: Dr Piotr Kładoczny, Dr Katarzyna Wiśniewska, and Mr Adam Klepczyński for their invaluable support, as well as Dr Wojciech Marchwicki and Mr Przemysław Tacij from the Hogan Lovells Warsaw office who represented, pro bono, the Malta Foundation. I would also like to thank the audience and artists for their gestures of solidarity with the Malta Foundation”, said Mr Michał Merczyński, the director of the Malta Festival Poznań.

Dr Wojciech Marchwicki, a counsel from the Hogan Lovells Warsaw office, who represented the Malta Foundation in the court proceedings, commented “In managing the public funds for culture, there are rules and there are contracts that must be abided by. The Ministry of Culture and Minister Gliński do not spend their own money, they only have public funds at their disposal. In this respect, the criteria should be as objective as possible. The court’s decisions confirm that the authorities cannot act ‘without following the rules.’ Punishing cultural institutions for cooperating with an inconvenient artist is unacceptable. This judgment rendered by an independent court proved the necessity of reminding the Minister of Culture of this obvious fact.”

“The trial of Malta Foundation against the Ministry of Culture is precedent-setting. The verdict in this case is also important for culture functioning in Poland. It shows that freedom of artistic expression is a constitutional value that cannot be limited by unilateral decisions only because the artist is, according to state authorities, controversial,” stated Mr Adam Klepczyński, a lawyer from the Helsinki Foundation for Human Rights. “It should also be remembered that culture in Poland is often financed from public funds, and therefore its support should be carried out transparently, without any restrictions which could violate the freedom of artistic creation,” added Mr Klepczyński.

The case is being handled under the Helsinki Foundation for Human Rights’ Precedent Matters Program. The Malta Foundation was represented, pro-bono, by the lawyers Dr Wojciech Marchwicki and Mr Przemysław Tacij from the Hogan Lovells Warsaw office.

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