Page - 8 - in Austrian Law Journal, Volume 1/2020

ALJ 2020 Lessons Learned 7 and Hungary have shown, the judicial, but also the political tools of the Council of Europe or their use could not prevent the democratic backsliding. This is even more so in the case of the Russian Federation and Turkey. In this context, it is important that the Council uses all its tools and also closely cooperates with the European Union, for example by establishing the facts as a basis of the political action by the Union. IV. Tools of the Council of Europe to avoid Democratic Backsliding today What are the main tools the Council of Europe can use to live up to its role as the democratic conscience of Europe today? In the following, a general overview will be provided without going into detail. A. The role of the European Court of Human Rights The European Court of Human Rights (ECtHR) can be considered the major pillar against backsliding in the field of human rights and democracy. This is also the main reason why it has come under attack by those governments which consider its jurisprudence an obstacle for their national and sometimes nationalist policies. They were joined also by others like the UK and the Danish government. Those governments emphasized their sovereignty and asked for a stronger application of the principle of subsidiarity and of the margin of appreciation. They also used the undisputed need of the Court to reform its working methods in order to cope with the large number of cases to press for their agenda in the successive Committee of Ministers’ high-level conferences, the so-called ”Interlaken process”, which was declared completed in 2019. Fortunately, the restrictive voices did not succeed.20 The Court has also been criticized by some governments of being too evolutionary in its jurisprudence leaving behind states which want to stick to more conservative values.21 Its authority has been put in question by the non-enforcement or weak implementation of its judgments.22 Regarding democratic backsliding the Court mainly deals with individual communications and therefore, in principle is not at ease in addressing structural issues. If it would make more use of the pilot case procedure this might have a stronger structural effect. But there is also the problem of the length of time it needs to deal with the cases and the lack of implementation of its judgements by some governments. For example, when the judiciary in Turkey had largely been brought under the control of the government and many thousands of civil servants, teachers and journalists removed from their positions for political reasons, the decision of the Court not to find a denial of justice because of a review of these decisions proposed by the Turkish government did not appear appropriate and left the victims with hardly any protection. In the Greek case the lack 20 See Lize R. Glas, From Interlaken to Copenhagen: What has become of the Proposals Aiming to Reform the Functioning of the European Court of Human Rights?, Vol. 20 HUMAN RIGHTS LAW REVIEW 1-31 (2020). 21 See, for example, Dimitri Bartenev, LGBT rights in Russia and European Human Rights Standards, in RUSSIA AND THE EUROPEAN COURT OF HUMAN RIGHTS, THE STRASBOURG EFFECT 326-352 (Lauri Mälksoo, Wolfgang Benedek eds. Cambridge University Press. 2018). 22 See George Stafford, The Implementation of judgments of the European Court of Human Rights: Worse than You think – Part 2: The Hole in the Roof, EJIL:TALK!, Oct. 8, 2019.