Page - 21 - in Austrian Law Journal, Volume 1/2020

ALJ 2020 Benedek 20 reacting to major challenges to its key values and obligations. Accordingly, the tools exist, but a more courageous approach is needed. The argument that the Council of Europe can only preserve its influence and also provide its services – such as the ECtHR - for the benefit of the citizen if it does not suspend rights of a member state has the potential of limiting possible choices. In the case of the RF and also Turkey this argument makes sense as long as these countries remain within certain red lines which also means that the Council can still have an impact. The reintroduction of the death penalty, a general denial of implementation of ECtHR judgments or a practice of systematic torture could be considered such red lines. Beyond them the credibility and legitimacy of the European human rights system would be at stake. To use the possibility of suspension or expulsion as a last resort may be justified. As previous cases show this would not necessarily mean that the country in question will withdraw forever, because as the European geography cannot be changed it will have to come back in particular when a new government takes over. With regard to the responsibility of member states as guardians of European values no state complaints have been made since the Greek and Turkish cases to protect the system from backsliding in Council of Europe member states. This ultimate tool of peer review remains unused although according to Article 33 of the Convention it can be used in the case of any alleged breach of the Convention and not only for the most serious breaches like a change of the political system by force. Member states today are using the inter-state complaint mainly for their own interest in relations among themselves like in the recent case of Slovenia v. Croatia.79 The question is whether they should not make more use of this remedy again for preserving the common interest,80 for dealing with major cases of democratic backsliding. This would not be just idealistic, but serve the European public interest common to all member states. There are few cases outside the protection system of the Council of Europe like Gambia v. Myanmar where such a public interest approach has been pursued.81 The use of inter-state complaints presently is increasing, but not as regards cases of common interest.82 The Greek case provides an example how this tool could be used in the public interest of the European protection system. Today, there are more actors and better structures, but also a lack of personalities, in particular also on the side of governments to push for using the tools of the Council of Europe for the common interest. There is a need for more courageous personalities, who show leadership. Summing up, the Council of Europe is still fighting for democracy as it did 50 years ago, but the challenges are different: they are not as deep as the dictatorship at the time, but they are wider as there are a larger number of problematic member states and situations, which provide different challenges to the European human rights system. Will the Council of Europe, which recently has celebrated 70 years of its existence, be prepared to meet the wider challenges and make full use of its variety of tools and will the member states be ready to support the Council of Europe in this 79 Slovenia vs. Croatia, Application no. 54155/16. 80 Wolfgang Benedek, Humanization of International law, Human Rights and the Common Interest, in, THE COMMON INTEREST IN INTERNATIONAL LAW 185-196 (Wolfgang Benedek, Koen De Feyter, Matthias C. Kettemann and Christina Voigt eds., Intersentia 2014). 81 International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v. Myanmar) – provisional measures, Order of Jan. 23, 2020, at https://www.icj- cij.org/en/case/178/orders (last visited 02.12.2020). 82 See ISABELLA RISINI, THE INTER-STATE APPLICATION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS (Brill/Nijhoff 2018); see also Geir Ulfstein, Isabella Risini, Inter-State Applications under the European Convention on Human Rights: Strengths and Challenges, at https://www.ejiltalk.org/inter-state-applications-under-the-european-convention-on- human-rights-strengths-and-challenges/#comments (last visited 02.12.2020).