SECOND SECTION

DECISION

Application no . 34895/09 Aliseydi ELMAS against Turkey

The European Court of Human Rights ( Second Section ), sitting on 15 October 2013 as a Committee composed of:

Peer Lorenzen, President, András Sajó, Nebojša Vučinić, judges, and Seçkin Erel, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 17 June 2009 ,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Aliseydi Elmas, is a Turkish national who was born in 1964 and lives in Malatya. He is repres ented before the Court by Mr B. Tüfenkçi, a lawyer practising in Malatya.

The Turkish Government (“the Government”) were represented by their Agent .

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1990 the applicant was diagnosed with rheumatoid arthrit is at a S tate hospital and started to receive treatment for that condition.

On 19 November 1996 the applicant w as examined by a doctor at the İ nönü University Physiotherapy and Rehabilitation Department who confirmed the previous diagnosis.

In the meantime, the diagnosis was endorsed by various State hospitals and he underwent a series of operations for that condition.

In 2004, having complained to the Hacettepe University Hospital Rheumatology Department of pain and swelling in the knees, ankles and arms as well as stomach and chest pain, the applicant was diagnosed with Familial Mediterranean Fever ( “FMF” – Ailevi Akdeniz Ateşi ) and a nkylosing s pondylitis. According to the applicant ’ s statements, he was informed verbally by a certain doctor from this hospital that he had received the wrong treatment so far, and that the medication which had been prescribed should be stopped immediately.

Subse quently, the applicant brought proceedings to obtain compensation before the Malatya Ad ministrative Court against the İ nönü University Hospital on account of the incorrect diagnosis and inappropriate treatment.

On 9 October 2006 the Malatya Administrative Court requested an expert report from the Forensic Medicine Institute. According to the report, dated 5 January 2007, which was adopted unanimously by eight doctors of the aforementioned body, no fault could be attributed to the hospital. In the report, the experts, noting that the most significant consequence of FMF was (renal) amyloidosis, admitted that this illness could have been detected at an earlier stage by in-depth questioning of the applicant about his medical history (a procedure known as “obtaining an anamnesis”) and that he could have started to take a certain medicine, namely colchicine, which could have delayed the development of amyloidosis. Instead, the applicant had been prescribed medication for the treatment of rheumatoid arthrit is . It was also observed in the report that the results of blood tests for rheumatoid factor had been consistently negative and the applicant ’ s other symptoms had not indicated rheumatoid arthritis. It further noted that the reason for the applicant ’ s polyneuropathy could not be determined. Lastly it stated that it would be more appropriate to treat rheumatologic diseases in the Rheumatology Department than in the Physiotherapy and Rehabilitation Department. It concluded that, all things considered, it was difficult to allocate fault to the Inönü University Physiotherapy and Rehabilitation Department, as the applicant had been examined by a number of doctors in the past, who had all recommended the same treatment for rheumatoid arthrit is , and that the correct diagnosis had been missed at several stages. It noted that Familial Mediterranean Fever is an illness which is rather difficult to diagnose and that even if he had taken colchicine, he might nevertheless have developed amyloidosis.

On 5 April 2007 the applicant partly contested the expert report.

On 31 May 2007 the Malatya Administrative Court rejected the applicant ’ s compensation request and, referring to the Forensic Medicine Institute ’ s report, held that there had been no “ gross negligence ” on which an award of compensation could be based. It mainly relied on the difficulty in diagnosing the illness in question.

On 30 March 2009 the Supreme Administrative Court upheld the decision.

COMPLAINTS

Without invoking any Article of the Convention, the appl icant complained about having received the wrong diagnosis and trea tment. In particular, he alleged that his renal amyloidosis, which developed as a result of the delay in treatment, would eventually lead to kidney failure.

The applicant further co mplained that he had received an unfair trial and alleged a breach of the principle of impartiality under Article 6 of the Convention.

THE LAW

The applicant ’ s complaints were communicated to the Government, who submitted their observations on the admissibility and merits. By letter dated 2 0 December 2012 the Government ’ s observations were sent to the applicant ’ s representative, who was requested to submit any observations together with a ny claims for just satisfaction in reply by 31 January 2013 .

By letter dated 17 April 2013 , sent by registered post, the applicant ’ s representative was notified that the period allowed for submission of the applicant ’ s observations had expired on 31 January 2013 and that no extension of time had been requested. The applicant ’ s representative ’ s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The applicant ’ s representative received this letter on 25 April 2013 . However, no response has been received.

The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Seçkin Erel Peer Lorenzen              Acting Deputy Registrar President