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21 - 30/06/2019

fundraiser auction for Malta Festival in 2017 / photo Maciej Zakrzewski
Galleryfundraiser auction for Malta Festival in 2017 / photo Maciej Zakrzewski

District Court in Warsaw has awarded Malta Foundation a sum of 300 000 PLN (plus interests) to be paid by the National Treasury, i.e. The Minister of Culture and National Heritage, as a result of the Minister’s failing to pay the amount in question in 2017 as a grant-in-aid for organisational purposes of Malta Festival Poznań 2017. The decision is still subject to appeal. 

In its decision, the court indicated that the obligation to pay the grant was purely contractual, and the contractual provisions regarding the reimbursement of Malta Festival’s organisation costs as grants-in-aid in years 2016-2018 were unquestionable. The court emphasised that the contract allowed the Ministry to reduce payment on very specific grounds, which was not applicable in this case. Additionally, the court pointed to the fact that the Ministry knew back in 2015 that Oliver Friljić would curate the 2017 festival, which is why as a person he could not have caused the Foundation’s not being granted the subsidy. The decision is still subject to appeal.

Thanks to Helsinki Foundation for Human Rights’s request, Malta Foundation is represented pro bono by lawyers from Hogan Lovells.

First hearing

During the first hearing which took place on 25 March 2019 in District Court in Warsaw, the foundation’s representative pointed out that although the trial primarily concerned the issue of the Ministry’s failure to meet their contractual provisions, it also might be the case of violating the constitutionally guaranteed freedom of artistic expression through exertion of so-called soft pressure. The legal advisor from the General Counsel to the Treasury who represented the Ministry moved for immediate and complete dismissal, claiming the Ministry had the full right to not award the foundation a grant-in-aid for the festival’s organisation in 2017. Having heard the statements of all sides involved, the Court decided to close the case. 

Case History

In 2016, Malta Foundation and the Polish Ministry of Culture and National Heritage signed a 3-year contract which obligated the ministry to annually subsidise the festival with grants-in-aid for organisation purposes. However, in 2017, the ministry refused to pay the grant, because one of the exhibition’s curator was to be Olivier Frljić, a play director and the creator of a performance act entitled ‘The Curse’. The spectacle had sparked controversy in some communities and was accused of deeply hurting the feelings of religious people. 

“The trial is about the 300 thousand zlotys which Malta Foundation failed to receive in 2017. But generally, it is about making clear that no minister, driven by any ideological reasons, can fundamentally decide about the shape of a cultural institution or its repertoire. It was the festival’s biggest allies – the audience and the artists – who proved to be its critically important element in 2017. It all began with an auction suggested by Mariusz Wilczynski, but another amazing gesture was the Become the Minister of Culture crowdfunding campaign. Over 1000 people participated, donating the necessary 300 thousand zlotys to support the festival. However, money is not everything, so we’ve decided to appeal to the Ministry’s decision through the court of law. As Malta Foundation, we only want law and justice” – says Michał Merczyński, the festival’s director and the head of Malta Foundation.

“The minister signed a 3-year agreement with Malta Foundation, according to which the festival should receive annual subsidies. Although the foundation met all formal requirements to receive them, the minister failed to fulfil his part of the agreement and refused to transfer the allocated funds on no substantial grounds. All the foundation expects is for the minister to keep his end of the bargain by complying with the contractual obligations. Pacta sunt servada. Contracts are binding, particularly in case of state institutions and the Minister of Culture” – emphasises dr. Wojciech Marchwicki from Hogan Lovells’ Warsaw office.

All decisions by the public authorities within the field of culture should be founded on transparent rules and justified precisely, while any state-supported artistic events must present different points of view.

It is unacceptable to deploy any action aiming to suppress any forms of artistic expression or to prevent some cultural institutions from functioning just because they present perspectives that are not in line with the views of those who represent state power.

The trial is conducted as part of HFHR’s Strategic Litigation Programme.