TUZINSKI v. POLAND
Inadmissible
Christos Rozakis
The applicant, a Polish citizen born in 1969, is a carpenter residing in Świecie. On 18 July 1990 the applicant, while serving in the army, was injured in a car accident. He was admitted to a military hospital and had an operation. After his discharge, on 20 September 1990 the applicant fell and his injury was renewed. By a decision of 28 August 1992 the military medical panel declared that the applicant was permanently unfit for military service. In 1993 the applicant began to receive military disability benefit. On 23 April 1993 he lodged a civil action with the Regional Court in Bydgoszcz. He claimed that his second accident occurred during work which he had been carrying out on orders of his military superior. He submitted that in the military hospital he had not received adequate treatment. Before the first-instance court the applicant was represented by J.M., a lawyer officially assigned to the case within the framework of the system of free legal assistance. By a decision of 2 February 1994 the Employment and Disability Medical Board assessed his disability as minor (of third degree), preventing him from carrying out any hard work in standing position.  On 8 August 1996 the Bydgoszcz Regional Court dismissed the applicant’s claim. The Court found that in July 1990, during his military service, the applicant had a car accident and his leg was broken. He had been treated in Grudziądz Military Hospital from 18 July 1990 to 1 August 1990. An operation had been made and a special device had been put in his leg to join the broken bones. On the latter date he was discharged from the hospital and transferred to medical ward in his military unit. Doctors recommended that in ten weeks he should undergo a hospital check. During his stay in the ward the applicant disregarded medical recommendations, in particular he refused to use crutches, and repeatedly kept leaving the ward. On 20 September 1990, having left the ward, he had accompanied another private who had been ordered to mow a lawn at the local school. During the break in the work, the applicant had fallen and felt pain in his leg. On the same day he had been transferred to the Grudziądz hospital where the doctors decided that he should be operated on. A day before the operation the applicant, despite medical recommendations to the contrary, had drank alcohol, which made the operation impossible. His leg had been put in a plaster cast. Subsequently he had again been transferred to the ward in his unit and a recommendation had been made that he should report to a hospital later. He did not do so. The applicant had been discharged from the military service on 10 May 1991, retaining for a further three months the right to use military health services. He had failed to report to any military medical institution. In 1993 his disability had been assessed as minor and he was receiving military disability pension. The court interviewed the applicant and heard evidence from, inter alia, one of the doctors who had treated him, two of his military superiors, and two other persons. The court had also considered as evidence, inter alia, the applicant’s medical records, the report of a medical expert appointed by the court, the decision of the military medical panel of 28 August 1992 and the decision of the Employment and Disability Medical Board of 2 February 1994. The court considered that, regard being had to the applicant’s persistent failure to comply with the medical recommendations, his treatment could not have been effective. There were no indications of any medical negligence on the part of persons who had been treating him. Moreover, there was no evidence to support his argument that had had his second accident while working as ordered by his superiors. The court concluded that there was nothing to show that there had been any causal link between any orders of the applicant’s military superiors and his second accident, or that there had been any medical negligence on the part of the military health services. Subsequently the applicant’s lawyer J.M. requested the Gdańsk Bar to designate a lawyer residing in the vicinity of the appellate court, the Gdańsk Court of Appeal, to represent the applicant in the proceedings before that Court. The Gdańsk Bar complied with his request and designated W.B. to represent the applicant. The Court duly informed W.B. of the date of hearing and on 27 February 1997 he attended the hearing before that court. On the same day, the court dismissed the applicant’s appeal. On 19 June 1997 the applicant’s lawyer J.M. requested a reinstatement in proceedings and requested that the judgment of 27 February 1997 with written grounds be served on him. He submitted that W.B. had failed to inform both him and the applicant about the outcome of the proceedings. He also failed to request that written grounds of the judgment be drafted and served on him which made it impossible for the applicant to lodge a cassation appeal with the Supreme Court. W.B. had only requested that the judgment be served on him. The applicant had learned that the Court of Appeal had found against him when he had come to the court in connection with other proceedings, long after the expiry of the time-limit for the lodging of the cassation appeal. In reply to the applicant’s subsequent query about the outcome of the case, W.B. had informed him that he had lodged a request for the written judgment to be served on him. This information had later proved untrue. Therefore the applicant had been deprived of a possibility of lodging the cassation appeal. The lawyer concluded that the applicant could have legitimately expected that he would be informed of the outcome of the proceedings and consulted about further steps to be taken in order to protect his interests. Thus he should be reinstated in the proceedings in order to be able to lodge an appeal in cassation against the judgment of 27 February 1997 as he had been deprived of this possibility without any fault on his part. On 17 September 1997 the Gdańsk Court of Appeal dismissed the applicant’s request for the reinstatement in proceedings. The Court also refused to draft the written grounds for the judgment. The Court considered that the acts of a lawyer appointed to represent a party before a civil court within the framework of a legal aid system aid were to be deemed to be the acts of the party. Thus, any failure on the part of the officially appointed lawyer to comply with the procedural requirements entailed negative consequences directly for the party to the proceedings. It fell to the Bar, and in particular to the lawyers appointed by it to represent the parties, to organise their work in a manner which would ensure effective representation of parties before civil courts. Even the fact that the lawyers concerned resided in different towns could not discharge the Bar and themselves from their obligation to do so. Therefore, the court concluded, there were no grounds on which to grant the applicant’s request for the reinstatement in the proceedings. Relevant domestic law 1. Assistance of an officially appointed lawyer Pursuant to Article 113 of the Code of Civil Procedure, a person may request the court to grant him or her exemption from court fees if he submits a declaration that he cannot afford to pay court fees without a substantial reduction in his and his family’s standard of living. Such a declaration shall contain details of the family situation, assets and income of the person concerned. A decision whether the financial situation of the person as set out in the declaration justifies granting exemption is left to the court’s discretion. 2. Cassation appeal Following amendments made to the Code of Civil Procedure by the Law on Amendments to the Code of Civil Procedure of 1 March 1996, a party can lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the civil proceedings. Pursuant to Article 393 of the Code, a cassation appeal may be lodged on the ground that the courts have committed errors of law in that they have incorrectly interpreted or wrongly applied substantive laws; or on the ground of such flagrant breach of procedural provisions as could have seriously affected the outcome of the proceedings.