I wrote a couple of articles on this subject before both in Turkish and English. I suggested that these allegations could be brought before the European Court of Human Rights (ECtHR). I said Mr. Doğan does not need to wait until the end of the court case in which he is being tried to lodge a case with the ECtHR because their allegations suggest that some “circles” played with this evidence to make Mr. Doğan and others appear guilty or guiltier than they could possibly be.
I argued that, like the allegation of being tortured, these allegations could be brought before the ECtHR by exhausting domestic remedies to this end while the “main court cases” continue. And I suggested following a very concrete roadmap -- namely, to bring a complaint before the public prosecutors against those who allegedly fabricated evidence; if the public prosecutor refuses to investigate these allegations, they could appeal against the prosecutor’s decision before a high criminal court, which would be the final step in exhausting domestic remedies.
After taking these few simple steps they would be able to argue their allegations before the ECtHR in depth. Given the “seriousness” of their allegations, they could even demand the court give their case priority and apply some interim measures under the Rule of Courts.
However, we have not heard any news that they followed such an “independent” legal avenue to take their allegations before the ECtHR. Their lawyers announced a few days ago that they brought all these allegations before the ECtHR in their application in which they mainly challenged Mr. Doğan’s arrest and detention under Article 5 of the European Convention of Human Rights.
If his lawyer had not clarified this matter, we would have never understood that they had discussed the “fabricated evidence” question before the ECtHR because when we read the ECtHR’s decision in their case, Çetin Doğan v. Turkey (28484/10), we cannot see even one single reference to their allegations.
The ECtHR has not even cited their allegations about “fabricated evidence” when it summarizes Mr. Doğan’s allegations. The statement that may remotely be related to this allegation of “fabricated evidence” appears to be the following: “…he explains that the Balyoz operation, used by the prosecutor in İstanbul as the base for making his charges, is a fictional scenario developed as an exercise as part of seminar work, and he argues that the original script has been reworked with a manipulative intent.”
I think even this paragraph I cited is not related to “fabricated” evidence. This one is one of the main lines in Doğan’s defense strategy arguing that all they prepared were scenarios for various situations but not a coup plan.
When we look at the assessment of the evidence by the ECtHR, all we see is this paragraph:
“The Court also notes that there exist elements of evidence such as the documents printed or digitized related to the planning of the Balyoz operations. The set of elements, consisting of a package of 2,229 printed pages, 19 CDs and 10 audio cassettes, including several documents signed by the plaintiff as well as minutes of meetings recording his speeches, had been collected by the prosecution before the applicant’s arrest, which had been made on the suspicion that he had committed the offense, an offense severely punished by the Penal Code.”
With all this evidence the ECtHR come to the conclusion that the arrest of the applicant is justified and based on some concrete evidence. Again we cannot see any discussion on these allegations of “fabricated evidence” in any part of the decision of the ECtHR. Obviously their allegations about fabricated evidence were not taken seriously and not given any weight by the ECtHR. It is of course possible for Mr. Doğan to discuss this “fabricated evidence” in later stages within the context of “fair trial” guarantees, which will be a discussion on procedure, whether the applicants arguments were evaluated in a fair manner and so on.
Some media outlets in Turkey, which widely published these allegations about “fabricated evidence,” now turn a completely blind eye to this decision of the ECtHR. Why?