Romanian Militant Democracy in Action

On March 11, 2025, the Romanian Constitutional Court (RCC) definitively barred far-right extremist Călin Georgescu from running as a candidate in the upcoming presidential election. This decision marks the end of a critical period for Romania’s young democracy that started in November 2024 and represents the culmination of a series of landmark decisions through which the RCC has strengthened the principle of militant democracy that underpins the Romanian Constitution. Moreover, the RCC has affirmed the EU and NATO membership as a central component of Romania’s democracy and rule of law, shielding it from subversion by the principles of non-regression and militant democracy. Collectively, these decisions represent unique constitutional developments in Romania’s recent history, as the RCC establishes new eligibility criteria for presidential candidates and asserts its competence to annul the presidential election.

Act I: the Ruling no 2 of October 5, 2024

On October 5, 2024, the Romanian Constitutional Court issued Ruling no 2. The Ruling dealt with the dispute over the registration of Diana Șoșoacă, another far-right extremist politician, to run as a presidential candidate. Under Article 31(1) of Law no 370/2004, which governs the election of Romania’s President, voters have the right to challenge a candidate’s registration before the Constitutional Court. The Court’s Ruling is remarkable for mainly two reasons. It is the first-ever decision in which the Constitutional Court barred a candidate from the presidential race on grounds of antidemocratic behaviour. Moreover, the Ruling connects democracy and rule of law with Romania’s membership in the European Union and the North Atlantic Treaty Organization, making Romania’s withdrawal from these two communities unconstitutional.

The Court based its reasoning on Article 1(5) of Romanian Constitution, which affirms the supremacy of the Constitution and mandates the observance of the laws in Romania (para. 53). The Court indicated that while respecting the Constitution is a general obligation for citizens, for presidential candidates this obligation takes on special significance by virtue of Article 80(2) of the Constitution, which lays down the role of Romania’s President – “guarding the observance of the Constitution” (para. 44). According to the Court, this special obligation of the presidential candidate goes beyond mere attitude or simple compliance, as it requires “active and responsible manifestation”. The Court clarified:

“Coherent public discourse oriented towards axiological respect for the Constitution in order to credibly impose/consolidate/value a loyal constitutional behaviour through dialogue and debate, thus indicating and foreshadowing the candidate’s capacity and willingness to engage in the democratic process.”

The Court attached particular weight to the oath that the winner of the presidential election takes, the only oath specifically enshrined in the Constitution (Article 82(2)), and which contains the pledge to respect the Constitution and defend democracy. Consequently, the Court pointed out that while defending democracy is a general obligation of every Romanian citizen, for presidential candidates it constitutes an “essential condition of intrinsic and substantive eligibility”, given the constitutional role of Romania’s President and the oath that must be taken (para. 47).

Romania is a semi-presidential republic with the President predominantly active in the areas of rule of law, defence, democratic governance, and foreign affairs. Most notably, the President appoints three out of the nine judges to the Constitutional Court and refers other legal conflicts of a constitutional nature to the Constitutional Court, for review. Furthermore, the President calls for referenda on topics of national interest, is the commander-in-chief of the armed forces, heads the Supreme Council of National Defence, and finally, has the power to dissolve the Parliament. As specified in Ruling no 2, the President also represents the country in foreign affairs, especially at meetings of the European Council and NATO. The indispensability of these responsibilities for the functioning of democracy in Romania makes it imperative to protect the Office of the President from antidemocratic forces through a limitation on their right to be elected, resulting from the democratic vision of the Constitution. Crucially, the Court regarded the Constitution as a bulwark against abolishing democracy and the rule of law (para 33). Democracy and the rule of law represent the “immutable and defining” coordinates of the Romanian constitutional order. This indeed they are: Article 152(1) of the Constitution acts as the eternity clause, while Article 1(3) proclaims democracy and the rule of law as definitory for the Romanian state, organized, under Article 1(4), as a constitutional democracy.

Concerning the 1989 Revolution, the Court repeatedly emphasized that Article 1(3) of the Constitution places democracy and the rule of law as supreme values “in the spirit […] and the ideals of the Revolution of December 1989”. Having the 1989 Revolution as its foundational moment, the modern Romanian democratic constitutional order is naturally combative towards would-be autocrats seeking to dismantle its democracy and liberty. As the Court put it in Ruling no 2 (para. 38):

“It is axiomatic that the adoption of the 1991 Constitution signifies the rejection of totalitarian, authoritarian or anarchic regimes, which means that democratic levers cannot be used for the purpose of distorting/deforming/challenging the constitutional order thus established, or Romania’s European course.”

Furthermore, Romania’s return to Europe in the wake of the Revolution is guaranteed by Romania’s membership of the European Union and NATO. In the words of the Court, “membership of the EU and NATO constitutes the political and military guarantee of the democratic development of the state and of ensuring the existence of the rule of law.” The Court acknowledged that this membership is constitutionally fundamental for democracy, and a guarantee of the “values enshrined in the Constitution, being expressly enshrined in it” – in Articles 148 and 149. Campaigning for Romania to withdraw from the EU and NATO equals campaigning to abolish foundational elements of Romania’s constitutional democracy and the “imperatives of the December 1989 Revolution”. Hence, the Court has activated the principle of militant democracy against candidate Șoșoacă, who campaigned for Romania’s withdrawal from the EU and NATO.

In a commendable move, the Court further armoured Romania’s EU and NATO membership with the principle of non-regression (para. 40). As a pivotal guarantee of the constitutional order’s democratic foundation, this membership cannot be revoked, not even by modifying the Constitution: “revision of the Constitution must be carried out in accordance with democratic values and rules, democratic or rule of law regression being excluded. As such, a constitutional revision is always oriented towards a developing and ascending protection of constitutional values and principles, as well as of fundamental rights and freedoms.” Consequently, Romania’s EU and NATO memberships enjoy the protection granted by Article 152 of the Constitution and cannot be subject to revision.

Act II: the annulment

Following the first round of voting on November 24, 2024, far-right extremist Călin Georgescu emerged in pole position for the second round. The second round never took place, as the Constitutional Court annulled it in Ruling no 32 on December 6, 2024. This Ruling is an expression of militant democracy, and while radical, also an unexpected paradigm shift that took Georgescu and his supporters by surprise, messing up their strategy that presupposed quickly waltzing into the Office of the President after a fraudulent manipulation campaign.

After carefully assessing Ruling no 2 of October 5, the annulment of the election by the Court cannot come as a shock. It is evident from that Ruling that the Court takes an extensive view of its prerogative of being the guarantor of the Constitution’s supremacy. The Court specifies this in paragraph 4 of Ruling no 32 and in Ruling no 2, invoking Article 1 of the Romanian Constitution to justify its authority in ensuring compliance with the procedure for the election of the President, as established in Article 146(f). It does so in the context of the fundamental values that define the Romanian constitutional order, chief among them being democracy and rule of law. That is why its powers under Article 146(f) cannot be interpreted restrictively. Through fraud, the election was thoroughly deprived of the essential elements that constitute the starting point of the democratic electoral agon, such as fairness, freedom, equality of chances, and transparency. Going forward with such a vitiated Presidential election would have structurally damaged Romania’s constitutional order and compromised its core values. Therefore, the Court saw annulment as the only course of action left in order to “protect both the citizens’ electoral rights, and the constitutional order’s foundations, essential for maintaining Romania’s democratic character and the rule of law.”

Act III: consequences

On March 5, 2025, the Central Electoral Office rejected Georgescu’s registration as a candidate for the May presidential election. The Central Electoral Office is formed anew with the occasion of each election, being composed of 5 judges from the High Court of Justice and Cassation, the president and vice-president of the Permanent Electoral Authority, and a maximum of 10 members of political parties (this time 7). In its decision, the Office applied both Ruling no 2 and Ruling no 32. Ruling no 2 was used to highlight the “defending democracy” eligibility requirement, while Ruling no 32 served to clarify that Georgescu was incompatible with this requirement. Given his fraudulent behaviour in the 2024 cancelled election, where he declared 0 lei as his campaigning budget, and which led to the election being heavily vitiated, the Office found Georgescu in breach of his obligation to defend democracy. Georgescu’s appeal to the Constitutional Court was quashed in Ruling no 7 of March 11, 2025. He and his clique of Russian-backed antidemocrats are currently under criminal investigation, inter alia for actions against the constitutional order and false statements concerning electoral expenses and assets declaration.

No standing ovation

There is cause for serious critique concerning Ruling no 2. The Court employed fairly byzantine reasoning in order to reconcile current Romanian electoral law on presidential elections with the finding that Șoșoacă did not pass the eligibility test of “respecting the Constitution” and “defending democracy”, which the procedure for the election of the President in Article 146(f) Constitution apparently now contains. According to Article 28 of Law no 370/2004, there are two categories of persons who cannot run as a presidential candidate: persons younger than 35 years, and those who have been sentenced for crimes. Notably, none of these two conditions were fulfilled in the respective prohibition of the presidential candidacy.

Moreover, Article 53 of the Constitution contains a general limitation clause on rights and freedoms, closely worded after the ECHR. Contrary to what the Court claims (para. 50), it is difficult to see how Articles 1(5), 80(2), and 82(2) of the Constitution rise to a sufficient level of foreseeability and precision in order to satisfy the criterion of “lawfulness of interference” present in the general limitation clause of Article 53 of the Constitution (restriction of rights and freedoms only by law), which the Court did not explicitly mention. Compelling arguments can be made that the Court failed to consider the significance of the requirement of foreseeability for limiting political rights in the context of an election, which, as the European Court of Human Rights pointed out, creates “considerable uncertainty about the potential effects of the impugned legal provisions” (Magyar Kétfarkú Kutya Párt v. Hungary, para. 116). Moreover, whereas Article 40(2) of the Constitution declares political parties and organizations that militate against democracy and rule of law unconstitutional, no similarly visible provision exists for presidential candidates and for the Court to limit their right to be elected on grounds of having militated against democracy and rule of law.

Be that as it may, the problematic reasoning behind Ruling no 2 does not affect Ruling no 32 on the annulment of the election. The Court guards the process of electing the President under Article 146(f) and is the warden of the (militant) democratic constitutional order. Article 2 of the Constitution mandates free, periodical and fair elections in Romania, while Article 81(1) specifies that the President “shall be elected by universal, equal, direct, secret and free suffrage”. As mentioned above, this would not have been the case. Furthermore, Article 53(1) Law 370/2004 authorizes the Court to “annul elections if the voting and the determination of the results have been carried out by fraud of such a nature as to alter the allocation of the mandate, or […] the order of the candidates eligible to participate in the second round of elections.”

Final considerations

Unfortunately, the indelicate reasoning the Court employed in Ruling no 2 results in the very broad criteria of “respecting the Constitution” and “defending democracy” as part of the procedure for electing Romania’s President, while also standing in stark contrast with very specific and innovative requirement on Romania’s EU and NATO membership. To be clear, additional protection for the Office of the President against dismantlers of democracy is welcomed. However, the broad criteria introduced in Ruling no 2 can easily be exploited to keep democratic opposition out of the race by a sycophantic Court in the future, if additional safeguards are not introduced.

In Romania, massive electoral fraud propelled antidemocratic forces to power once before. Soviet-backed communist forces achieved control over the political scene following the heavily vitiated 1946 election, abolishing the constitutional monarchy shortly thereafter. Henceforth, Ruling no 32 should serve as a basis for reflecting on the role of election annulment within militant democracy’s toolkit.