On Means and Ends

During the 2024 presidential elections, the Romanian Constitutional Court (RCC) has assumed a surprisingly militant stance, ultimately granting it an unexpected leading role in the outcome (disruption) of the elections. Alas, the outcome, which at the moment seems an acceptable political result for the pro-European parties, i.e. preventing a possible victory of a far-right, pro-Russian candidate, was achieved through a series of unfortunate decisions. They were at odds with constitutional order, principles of the rule of law, or the idea of democracy. The RCC’s attempts to reinterpret the relevant norms in a way that would enable a more rigorous scrutiny of anti-democratic forces, a more potent answer to far-right challenges, unfortunately resulted in rights restrictions, overboard interpretation of its own powers, and a failure to observe deadlines.

Romania is a semi-presidential republic, with a directly elected president, who does not lead the cabinet but still retains significant powers. The presidential election procedure is overseen by the RCC, made up of nine judges, nominated by the parliament and the president of the republic. In the first decades of its existence, the tendency was to nominate former MPs as constitutional judges. Since the late 2000s, career lawyers overtook the majority, but the current president of the Court is still a former MP. Hence, in politically sensitive issues, notably in a priori review procedure and conflict of competence cases, the judges tend to coalize according to their former political affiliation or sympathies. Generally, the RCC proved to be considerably deferential, avoiding to take the forefront in the democratic transition until the past decade, when it began to show signs of activism.

Regarding presidential election procedure, the Court’s powers are scattered in various norms: the Constitution, the law on organizing and functioning of the RCC and the law on the presidential election. On the basis of the above norms, the Court has a competence to review the acceptance or rejection of candidacies by the Central Electoral Office, claims relating to obstructions of the candidates’ possibilities to run their campaigns, the validation of the results of each round of the elections and the attribution of the presidential mandate. However, in a 2019 Decision (No. 66 of October 1, 2019), the RCC extended its jurisdiction to the entire electoral process, arguing that normative provisions merely indicate those situations in which the Court has an explicit and mandatory competence. However, the Court’s jurisdiction cannot be reduced to a mere control of legality. Therefore, the Court argued that it holds implicit competence over the entire presidential election process, which is triggered when interested parties lacks access to other remedies in cases of violations of the law on presidential election.

The first questionable RCC decision regarding the 2024 presidential elections concerns the candidacy of far-right SOS party leader Diana-Iovanovici Șoșoacă. Through Decision No. 2 of October 5, 2024, the Court upheld a complaint lodged against the Central Electoral Office’s decision to register Șosoacă’s candidacy and removed her from the presidential ballot. The decision drew on the candidate’s anti-EU, anti-NATO, and pro-Russian stance, her verbal aggressiveness, and general disregard for legality as inferred from her public declarations and some of her actions taken during the past years, which were held incompatible with the fundamental values of the Constitution, democracy and the rule of law.

In a dissenting opinion, judge Scântei argued that the RCC acted outside of its competence, analysing declarations and conduct, instead of checking the formal and substantive conditions to be fulfilled by the candidates, under the law on the presidential elections, and as the Court itself has previously held in its jurisprudence. The dissent also argued that excluding a candidate from the ballot for reasons beyond the formal and substantive legal requirements necessary to run for office constitutes a restriction of political rights. This contradicts the constitutional and legal provisions governing presidential elections, which allow such a measure solely on the basis of a final court decision prohibiting the exercise of those rights. Additionally, the Venice Commission’s Code of Good Practice in Electoral Matters also stresses that political rights might be suspended only based on a criminal conviction for a serious offense.

The next questionable RCC decisions pertaining to the 2024 presidential elections concern the recount of votes cast in the first round. First, in its November 28 decision, the Court requested the Central Electoral Office to recount all votes cast in the first round. In the history of post-communist Romanian elections, there had been only one previous case of recount, in the second round of the 2016 presidential elections, when all invalid votes were recounted. The RCC’s decision led to a logistical nightmare, as the recount of more than nine million votes had to be organized in parallel with preparations for the parliamentary elections, scheduled to be held two days later. Furthermore, the law on the presidential elections establishes a 24-hour deadline for the RCC (from the moment it receives the Central Electoral Bureau’s report on the ballot) to confirm the number of votes obtained by the candidates and announce the names of the two candidates qualified for the second round. Accordingly, the Court set a 24-hour deadline for the recount, which proved impossible to meet in practice. As a result, the second decision, on November 29, established a new deadline of December 2 for completing the recount. This was another questionable measure, as it both breached the 24-hour legal deadline and delayed the final decision beyond the parliamentary elections, scheduled for December 1.

Moreover, after the RCC decided on the recount of the votes, the Supreme Security Council convened due to suspicions of alterations in the electoral process, as previously uncredited far-right candidate Călin Georgescu (POT), who had achieved a shocking first-round victory, revealed a number of irregularities, notably concerning online campaigning and the involvement of foreign actors.

Lastly, in its December 2 decision, the Court validated the results of the first round of elections, as the (partial) recount did not produce a difference in the final order of the candidates. It must be noted that votes cast abroad could not be recounted, since authorities failed to return them by the date of the Courts’ December 2 session. The RCC cut the Gordian knot by declaring that votes cast abroad did not need to be recounted, as the initial complaint only referred to irregularities at three domestic voting stations, while refraining from explaining why a full recount was demanded in the first place.

The final RCC decision on the presidential elections, No. 32 of December 6, 2024, annulled the entire electoral process from the outset, instructing authorities to set a new date for the presidential elections and effectively restart the process. The Court based its decision on several “information notes” transmitted by the Ministry of Internal Affairs and the secret services to the Presidential Office, which were declassified and made public on December 4. These documents reveal a number of irregularities and unlawful acts allegedly affecting the entire electoral process, including transparency and equity of the electoral campaign, campaign financing rules, as well as candidates’ equality of opportunity and electoral freedom. Unfortunately, this latest decision by the RCC contains the highest number of problematic elements.

First, there is no constitutional or legal provision that would allow the Court to initiate an ex officio procedure to examine the legality of the presidential elections. The law on the presidential elections exclusively enumerates those entitled to file a complaint for annulment (candidates, political parties, political or electoral alliances and members of national minorities’ organizations represented in the Council of National Minorities), without mentioning the possibility of an ex officio procedure. Similarly, the law on the organizing and functioning of the Constitutional Court expressly enumerates the cases in which the Court might start an ex officio procedure (for instance, in the case of constitutional amendments), without mentioning procedures related to the presidential election process. Even if the RCC has previously found a way to extend its jurisdiction beyond the normative limitations in this matter, that does not confer it the competence to initiate investigations on its own behalf, especially in such a sensitive issue, where, as an unelected and unaccountable body, it holds the power to override the will of the citizens, expressed through universal suffrage.

Second, there is no constitutional or legal provision providing for the annulment of the entire electoral process. The law on the presidential elections only regulates the possibility of the annulment and repetition of either of the two rounds of the elections for very specific reasons, such as acts of fraud that might have affected the order of the candidates eligible to participate in the second round or the allocation of the presidential mandate. In its 2019 decision (No. 66 of October 1, 2019.) the Court extended its subject matter jurisdiction beyond the control of legality to also include the control of the constitutionality of the electoral process. However, this does not grant it the power to impose sanctions beyond those provided by law (i.e. annulment of the entire electoral process vs. annulment of a single round of the elections).

Third, the law on the presidential elections establishes a three-day deadline, starting from the closure of the ballot, for entitled persons to file an annulment complaint. There is no legal provision allowing the RCC to initiate an annulment proceeding beyond this deadline (the December 6 decision was issued 12 days after the ballot closure). The Court’s final annulment decision appears even more problematic in the light of the fact that, in certain voting stations abroad, voting in the second round of the elections had already begun on December 6, and several tens of thousands of votes have allegedly been cast by the time the elections were suspended.

Beyond the RCC’s questionable approach, further problematic issues must be noted. On one hand, it is inexplicable and contradictory to the principles of the rule of law that the existence of irregularities and unlawful acts affecting the entire electoral process was communicated to the Supreme Security Council only after the first round of elections, and that the latter decided to declassify and publish this information only after the RCC validated the results of the first round. Citizens were allowed to exercise their electoral rights without knowing they were participating in a rigged electoral process, while entitled entities were precluded from exercising their right to file annulment complaints within legal deadline, as the relevant information was released only after the deadline has passed.

On the other hand, as the RCC has jurisdiction only over the presidential elections, it is not entitled to rule on the legality and constitutionality of parliamentary elections. This has led to a situation where, despite the parliamentary and presidential elections practically overlapping and far-right competitors achieving largely similar results in both elections (parties approx. 32%; presidential candidates approx. 36%), large-scale manipulation efforts were deemed to have affected only the presidential elections, while the parliamentary elections were considered unaltered and valid.

The story is far from over. The validity of the parliamentary elections has reportedly been contested before the High Court of Cassation and Justice (which has the competence to oversee parliamentary elections) based on the same arguments that led to the annulment of the presidential elections. Furthermore, even if the RCC’s unexpectedly activist stance may have momentarily saved Romania’s fragile democracy, this problematic expansion of its review powers could just as easily turn against the democratic establishment in the future. A far-right dominated Court, for example, might invoke alleged interference by Brussels to eliminate democratic candidates from the ballot or annul the entire electoral process in cases of undesired outcomes. For better or worse, there is certainly more to come from Bucharest on this issue.