Communicated on 29 January 2018

SECOND SECTION

Application no. 40403/10 Şükrü SÜRGÜN against Turkey lodged on 27 May 2010

SUBJECT MATTER OF THE CASE

The application concerns the proceedings brought by the applicant for the recognition of his eligibility to the invalidity pension ( malul aylığı ) . The applicant had worked as waiter between 1996 and 2001. He asked for early retirement after having been diagnosed with nasopharyngeal cancer and undergone several operations for the complication developed at the lower extremity of his left leg, necrotising fasciitis. Following his early retirement, he started receiving from the Social Security Authority the invalidity pension. On 1 December 2004 the Social Security Authority withdrew his entitlement to the invalidity pension on the grounds that he did not lose at least two-thirds of his working capacity according to the health report prepared in his follow-up examination on 1 November 2004. The applicant objected to the decision and obtained several reports from public hospitals stating that he was unable to work. The Social Security Authority dismissed the applicant ’ s objections reiterating its conclusion that he had not lost two ‑ thirds of his working capacity. Subsequently, the applicant brought proceedings against the Social Security Authority. The labour court sought an expert opinion from the Forensic Medicine Institute. The Third Specialist Committee, in its opinion of 18 February 2009, concluded that the applicant ’ s health problems, namely the loss of hearing in the left ear and the limitation of motion in the left leg as a result of the necrotising fasciitis, did not amount to a two-third loss in his working capacity and calculated the applicant ’ s level of disability as 58%. The applicant objected to the report requesting a fresh opinion by the General Assembly of the Forensic Medicine Institute. The first-instance court delivered its judgment on 8 April 2009 and dismissed the applicant ’ s lawsuit relying entirely on the Third Specialist Committee ’ s report. The applicant appealed against the judgment, but the Court of Cassation dismissed his appeal on 28 January 2010.

The applicant complains that the domestic authorities unfairly divested him of the right to receive the invalidity pension although he had to retire early because of ill health. The applicant maintains that he had obtained several reports from university hospitals attesting to his inability to work and that the domestic courts relied solely on the report which does not state on what basis the loss in his working capacity was calculated as 58% and therefore overlooked his actual condition.

QUESTIONS tO THE PARTIES

1. Did the applicant have a “possession” in respect of the invalidity pension, for the purposes of Article 1 of Protocol No. 1 (see Moskal v. Poland , no. 10373/05, §§ 41-45, 15 September 2009)?

2. If so, has the applicant been deprived of his possessions within the meaning of Article 1 of Protocol No. 1? Did that deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 59, ECHR 1999 ‑ V) having regard to the fact that although he had been unfit for work the Social Security Authority stopped paying invalidity pension to him?

3. As regards the Forensic Medicine Institute ’ s report, on what basis did the Third Specialist Committee calculate the applicant ’ s level of disability as 58%, that is to say only two percent lower than the minimum level of disability which would have allowed the applicant to retain his benefit? In particular, did the assumptions built into the calculations of the committee sufficiently reflect the applicant ’ s occupational situation, in particular the fact that he had to retire early from his work as a waiter because his left leg was disabled? Furthermore, did the labour court provide sufficient reasons for relying on the Forensic Medicine Institute ’ s report rather than the other medical reports submitted by the applicant?

4. As regards the revocation of the invalidity allowance, was any other type of social benefit available to the applicant, owing to his disability, on which to subsist (see Béláné Nagy v. Hungary [GC], no. 53080/13, § 123, ECHR 2016)?

The Government are requested to provide the complete medical file of the applicant including all health reports that the applicant did not present in his application to the Court. The Government are also asked to provide the Social Security Authority ’ s decisions in respect of the applicant ’ s invalidity allowance and the relevant correspondence. Finally, the parties are requested to submit copies of all the relevant documents concerning the proceedings before the labour court and the Court of Cassation.