Page - 17 - in Austrian Law Journal, Volume 1/2020

ALJ 2020 Benedek 16 possibility of appeal to the Ankara administrative courts led to another decision on exhaustion of local remedies64 and the striking off of some 12.600 cases by the Court. The functioning of this decree law as effective remedy is denied by Turkish legal experts.65 In conclusion, instead of using its pilot case procedure the Court left the victims of the political purges largely unprotected. Recently again, the Court decided in the prominent case of Kavala that the person had to be released immediately. In this case the Court also found a violation of Article 18 of the Convention finding an abuse of power by the extended detention of a human rights defender in order to silence him.66 The EU has followed up requesting Turkey to act on the judgment, but so far without any result.67 In the case of several journalists, the judgment of the ECtHR was undermined as they were released, but then put in detention again based on new accusations.68 The member states are the guardians of the European Convention and of the system of human rights protection build on it. They are supposed to act in the general European public interest. What has been the reaction by member states of the Council of Europe, have inter-state applications been considered at all against the systematic violations of human rights and the backsliding of democracy in Turkey? Obviously not, although this would have been a powerful signal to the Turkish president. 3. Similarities and Differences to the “Greek Case” In order to draw useful conclusions, it is important to note the similarities and differences. The “Greek case” may be considered as an extreme one, but in the structure of events there are similarities to be found and lessons to be learned. The main similarity is the need for determined action on behalf of member states in order to preserve the human rights system. The main difference obviously is the fact that the military coup in the “Greek case” abolished democracy and introduced a military government, which was using torture as a general means of oppression, at least in the first phase. Such a government should not have a place within democratic nations. In the context of the European Union there is Article 7 to respond to such cases of backlash. However, the crucial question is what to do with authoritarian governments which use populist and sometimes even fascist policies in order to stay in power. They are usually democratically elected, but do not respect the values of the Council of Europe or the EU. They have not – as yet – reintroduced the death penalty (as Erdogan threatened to do). They generally accept the judgments of the ECtHR, but may not implement those they dislike. They pursue a so-called “illiberal democracy”, which is alien to the foundations of the Council of Europe. 64 Köksal v. Turkey, Application no. 70478/16, Decision of Jun. 6, 2017. 65 See Altiparmak, Gürol, supra note 63, 127-130. 66 Kavala v. Turkey, Application no. 28749/2018, Judgment of Dec. 10, 2019. 67 See Statement by the EU-spokesperson, at https://eeas.europa.eu/headquarters/headquarters- Homepage/71927/statement-spokesperson-following-european-court-human-rights’-verdict-mr-kavala-still- detained_el (last visited 02.12.2020). 68 See Altiparmak, Gürol, supra note 63, 113.