Seite - 9 - in Austrian Law Journal, Band 1/2020

ALJ 2020 Benedek 8 of independence of the judiciary was clearly established by the Commission in spite of claims of the government to the contrary. Accordingly, no requirement of the exhaustion of domestic remedies was accepted. Although the two cases are not of the same nature because of the democratic election of the Turkish government, the question of the denial of justice because of an inefficient remedy remains.23 B. The role of the other key institutions of the Council of Europe Besides the European Court of Human Rights, the Parliamentary Assembly (PACE) as the democratic representation of the parliaments of member states plays a major role in the development and monitoring of democracy in the member states in continuity of its role at the time when former dictatorships joined the Council of Europe or in the cases of Greece and Turkey. If the Council of Europe can be considered as a “club of democracies”, the Assembly consisting of 324 members appointed or elected from the parliaments of all member states has a central role in upholding its core values.24 However, the recent past rather revealed a crisis of maintaining those values and of PACE altogether as will be shown later. Also, PACE as a political body in which the deputies of the backsliding country are represented will mainly act in very serious cases as could be seen in cases related to the right to life or the freedom from torture in so-called “new democracies” in the past. However, in the recent cases of Poland and Hungary, PACE did use its monitoring possibilities only to a limited extent. While it requested several legal opinions from the Venice Commission it did not extend its procedure of full monitoring to these countries. Interestingly, in 2019 Assembly decided that its monitoring committee should in the future produce regular periodic reviews on all member states of the Council of Europe.25 Obviously, the Committee of Ministers always had a key role, but the enlargement of the Council of Europe in the 1990s has also led to a wider diversification of views, of interests and approaches, which makes it difficult for the Committee of Ministers to reach agreement on political matters. Several bodies do prepare the ground for its decisions. In the “Greek case” the Committee of Ministers showed itself hesitant for a while but then under the impression of the clear findings from the European Commission on Human Rights and the Assembly as well as public opinion it acted according to its responsibilities. But because of the Greek withdrawal it did not have to use its powers under Article 8 of the Statute to suspend or expel Greece from the organization because of a violation of its standards and there has been no other case where this has ever happened. Indeed, the Assembly representing national parliaments rather than governments is more inclined to react to major violations of those standards and thus act as the “conscience of Europe” although this did not happen in all instances, as the case of Azerbaijan shows. 26 23 See Köksal v. Turkey, Application no. 70478/16 of Jun. 12, 2017, in which the Court decided that civil servants dismissed after the attempted coup had first to bring their complaint to a state commission set up for that purpose, the decision of which had then to be appealed to an administrative court and finally petitioned to the Constitutional Court before the person could address an application to the European Court of Human Rights. 24 Andrew Drzemczewski, The Parliamentary Assembly’s key role in upholding the Council of Europe’s core values, in El futuro de la Union Y la amenaza de uno no Europa. La crisis de valores de la UE (The crises of Values and the Future of Europe) 43-56, S. Sanz Caballero ed., Aranzadi. 2020). 25 Council of Europe, Parliamentary Assembly Resolution 2325 (2020) of Jan. 30, 2020 on The progress of the Assembly’s monitoring procedure (January – December 2019), para. 5.1. 26 Drzemczewski, supra note 24, at 49 et seq.