Hogan Lovells Warsaw Wins Freedom of Speech Case

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.

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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