Venice Commission: the 2024 cancellation of the Romanian presidential elections violated several democratic standards

On January 27th 2025, the European Commission for Democracy through Law (also known as the Venice Commission) published an Urgent Report on the Constitutional Court of Romania (CCR) cancellation of the Romanian presidential elections held at the end of 2024. The Commission was referred to by the President of the Parliamentary Assembly of the Council of Europe (not every person/entity has the right to refer a matter to the Commission).

The report contains several findings and recommendations. They are not formally binding but optional. Nevertheless, given that the Commission’s role is to establish democratic standards in this matter through its panel of experts (in principle, we refer here to the experts, not to the quality of the Romanian representatives in the Commission), it is expected that Member States implement its recommendations. Especially if these are states who choose to follow a democratic path.

The report states that the Commission considered issues of principle  rather than the concrete analysis of Romania’s Constitutional Court decision[1]. In conclusion, the Commission does not set out to annul or confirm the decision of the Constitutional Court (nor can it). The Venice Commission report neither denies the possibility that a Constitutional Court may decide to annul the elections [2] nor the fact that the Court can take an ex-officio action[3]. However, the things the Commission agreed on regarding the democratic procedure for annulling the elections pretty much stop there.

Below is a summary of the Commission’s most important observations, with the caveat that anyone who reads the report can identify other issues:

1

The right of a Constitutional Court to act on ex officio and annul elections must be clearly regulated by law and should only be used in exceptional situations[4]. Moreover, the Commission pointed out that the practice of ex officio actions[5] by Constitutional Courts has a negative effect, as such actions may lead to the circumvention of the rule that states that any shortcomings in the election process can only be addressed in a short time-frame, so as not to impede or interfere with the election process[6]. Since the Court’s ex officio action is possible at any time, there is a possibility for late referrals to be taken into account indirectly, even though they should be rejected precisely for reasons of tardiness. Such actions bypass the rule that any breaches of the electoral law may only be invoked within a specific time frame, which must be short.

In our country, the law does not allow the Constitutional Court to take ex officio action to cancel elections. Thus, in the judgement of the Court, no. 32/2004, to annul the elections, the Romanian Constitutional Court did not invoke a legal provision to justify its own ex officio action but only invoked its own jurisprudence, through an older decision, i.e. its own volition. It should be noted that according to the law on the functioning of the RCCC (Law 47/1992), the Court can only take ex officio actions regarding initiatives to amend the Constitution. Furthermore, in Romania, the procedure through which the RCC may annul the election is not regulated by law. Moreover, RCC took an ex officio action and cancelled the elections after all the cut-off dates provided by the law through which dissatisfied citizens could file appeals had passed. In conclusion, all these aspects infringe on the democratic standards set out in the Commission’s report.

2

As per the Commission’s report, if a court, including a Constitutional Court, is to decide on annulling the elections, the court procedure must guarantee that the following rights are observed[7]:

a) The right to a fair, public, and transparent hearing on the issue to be decided by the Court, in which all parties (both the party requesting/supporting the annulment and the party opposing the cancellation) should participate.

In our country, such a right is not guaranteed if elections are annulled or if a candidate is excluded from the electoral race.

b) The right to present evidence in support of the complaint (at first instance) after the complaint has been lodged (we emphasise the term “evidence” used by the Commission. The Commission explicitly refers to evidence, not just information).

In our country, such a right is not guaranteed if elections are annulled or if a candidate is excluded from the electoral race. The Constitutional Court decision to annul the elections was not based on evidence but on information provided by intelligence services. In addition to this information, no other evidence has been provided, although the Commission has made it clear that information from intelligence services is only contextual information and a court’s decision to cancel an election must refer to evidence.[8]

c) The right to challenge the first instance court’s decision in a court of law. In our country, such a right is not guaranteed if elections are annulled or if a candidate is excluded from the electoral race by the RCC. The decision cannot be appealed, as it is a final ruling. The courts, seized with complaints/challenges against the Constitutional Court judgement, have established that a Constitutional Court judgement in electoral matters cannot be appealed in Court. However, according to the democratic standards mentioned by the Commission in its urgent report, the judgement of any decision-maker in electoral matters, even if the decision-maker is a Constitutional Court, must be open to challenges before a court of law.

It is easy to see that, in all these aspects regarding the respect for procedural rights in the election cancellation procedure, the democratic standards set out in the Commission’s report are being violated in our country.

*

What can be done, urgent or not, after this urgent Commission report? Two things could be done, but both are as unlikely as it is sure that we are on a ship without a captain:

1. The Romanian Constitutional Court should review the decision to annul the elections on  grounds that a new act -Commission’s report of January 27th 2025- shows that the annulment of the elections was made in violation of several democratic standards. Paragraph 9 of the Commission’s report states that the Constitutional Court has already revised, on December 6th 2024, an earlier ruling of December 2nd 2024. Since the revision is a way to rectify wrongful final judgments of the Romanian Constitutional Court and has already been used by the Court [9], it could also be used to review the Constitutional Court election annulment ruling of December 6th 2024.

2. The Parliament should urgently amend the electoral legislation as well as the Constitutional Court legislation in order to comply with the democratic standards outlined in the Commission’s urgent report of January 25th 2025.

If those two things, which should be done, cannot be carried out, there is only the following statement, which is not in the Commission’s urgent report, to reflect on: The answer, my friend, is blowing in the wind….

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[1] Par. 6. “It is not for the Venice Commission to go into the facts of the case, or into the examination of the decision by the Romanian Constitutional Court. The question put to the Venice Commission by the Parliamentary Assembly is of a general nature, and it refers to an analysis of general comparative constitutional law and European and international standards.”

[2] Par. 21 “(…)The attribution of the right to cancel elections to the constitutional court is thus in line with – although not required by – European and international standards and with the legislation in many States (….)”

[3] Par. 26. “International standards do not impose nor prohibit in principle ex officio decisions of constitutional courts”

[4] Par. 27 “If constitutional courts were given the right to act ex officio and to annul elections on their own initiative – this would be an enormous power for which it would be reasonable to demand a clear legal basis. In the view of the Venice Commission, the power of constitutional courts to invalidate elections ex officio – if any – should be limited to exceptional circumstances and clearly regulated, in order to preserve voters’ confidence in the legitimacy of elections.”

[5] In common parlance, the term “self-referral” is also used.

[6] Par. 26. “Moreover, an extensive ex officio competence of the constitutional court could put in question the value of (mostly rather short and strict) time limits for complaints if the instance reviewing the election was free to act ex officio after the time limit has expired.”

[7] Par. 30 “… the Venice Commission concluded the following in relation to procedural rights in electoral disputes:

“47. In terms of procedural rights, the applicants’ right to a hearing involving both parties must be protected. More specifically, the following rights must be guaranteed:

“a. The right to present evidence in support of the complaint [appeal at first instance] after it is filed;

1. The right to a fair, public, and transparent hearing on the complaint;
2. The right to appeal the decision on the complaint to a court of law”.
3. The hearing must be public, as the transparency of electoral dispute procedures is very important to ensure trust in the electoral process. Decisions must be well-reasoned and made public.

31. In the view of the Venice Commission, such procedural requirements (par. 30) also apply to ex officio decisions that lead to the annulment of the election“

[8] Par. 59 “In the opinion of the Venice Commission, such decisions should precisely indicate the violations and the evidence, and they must not be based solely on classified intelligence (which may only be used as contextual information), as this would not guarantee the necessary transparency and verifiability.”

[9] Par. 9. “Another specific feature of the Romanian case is that the Constitutional Court’s decision of December 6th 2024 was a revision of its own decision of December 2nd 2024 in which it had confirmed the general validity of the elections. This new decision of the Constitutional Court was justified on the basis of new information“