Venice Commission warns against annulment of Romanian presidential elections based on classified data: annulment may only be permitted in „very exceptional” circumstances

The Venice Commission released a report on Monday regarding the annulment of Romania’s presidential elections by the Constitutional Court.

„Proving legal violations through online campaigns and social media is particularly difficult. Well-reasoned and transparent decisions on such matters are crucial. In the Venice Commission’s view, such decisions should clearly specify the violations and the evidence and must not rely solely on classified information (which can only serve as contextual data), as this would not ensure the necessary transparency and verifiability,” the report states.

„Affected parties must have the opportunity to present their views and evidence,” the Venice Commission further emphasizes in its report.

The Commission also notes that „the annulment of the first round of Romania’s presidential elections by the Constitutional Court, while not the first such decision in Europe, is exceptional in several respects.”

Firstly, the Constitutional Court acted on its own initiative under an extended competence provision stating that „the Constitutional Court oversees compliance with the procedure for electing the President of Romania and confirms the election results.”

Secondly, the decision is based on interference through social media networks and the misuse of digital technologies and AI in favor of one of the candidates. Thus, the issue is not directly related to the electoral process itself but rather to the preparatory phase of the elections and the opaque influence on voters.

Thirdly, although the decision is grounded in violations of electoral laws—particularly those regarding campaign financing and the fairness of the elections—the Court also identified an attack on Romania’s sovereignty due to foreign influence in the electoral process.

Venice Commission’s Key Recommendations:

The Venice Commission makes the following key recommendations:

A. The annulment of election results should be decided by the highest electoral body, and such decisions should be subject to review by the highest judicial authority, whether it be the constitutional court or a specialized electoral tribunal, where such a body exists [point 21].

B. The power of constitutional courts to invalidate elections on their own initiative—if such a power exists—should be limited to exceptional circumstances and clearly regulated [point 27].

C. The annulment of part or all of an election should only be allowed in „very exceptional circumstances” as a last resort, and only if irregularities in the electoral process could have affected the election outcome [points 18 and 39].

D. The decision-making process regarding election results must include adequate safeguards to ensure, in particular, a fair and objective procedure and a well-reasoned decision based on clearly established facts proving irregularities significant enough to have influenced the election results. Affected parties must be able to present their views and evidence, and the discretionary power of judges handling electoral disputes should be guided and restricted by legal provisions. Decisions must be made within reasonable timeframes [paragraphs 16, 28, 31, 33].

E. It should be possible to challenge election results based on violations of electoral rights, freedoms, and interests by the state, public and private electoral actors, as well as based on media influence, particularly social media influence, including foreign-sponsored and foreign-funded content [points 48 and 49].

F. States should regulate the consequences of disinformation campaigns, cyberattacks, and other digital threats to electoral integrity. Candidates and parties must be granted fair and equitable access to online media, and regulations should ensure that AI-driven algorithms used by internet platforms do not favor certain parties or candidates over others [points 54 and 55].

G. General rules on campaign financing and transparency should apply to online electoral campaigns conducted via social media platforms. States should also regulate the labeling of online electoral advertising to ensure transparency, and social media platforms should be required to disclose data on political advertising and its sponsors [points 56 and 58].

Context:

The Parliamentary Assembly of the Council of Europe (PACE) referred the matter to the Venice Commission regarding the legal framework within which a constitutional court may annul elections. This request was based on the Romanian Constitutional Court’s ruling on December 6, 2024, which invalidated the presidential elections.

„Urgent opinion—under what conditions and based on which legal norms can a constitutional court invalidate elections, with reference to the recent case in Romania?” reads the request submitted by PACE.

The Parliamentary Assembly is one of the two statutory bodies of the Council of Europe, an international organization dedicated to defending human rights, democracy, and the rule of law. PACE is also responsible for electing the judges of the European Court of Human Rights.

The Venice Commission is an advisory body of the Council of Europe, composed of independent experts in constitutional law.

On Friday, December 6, the Romanian Constitutional Court (CCR) unanimously decided to annul the presidential elections, requiring the electoral process to restart in full, according to a CCR statement.

The CCR’s decision came while the second round of the presidential elections, in which independent candidate Călin Georgescu was competing against USR (Save Romania Union) candidate Elena Lasconi, was still ongoing in the diaspora.

The unprecedented announcement was made two days after the declassification of secret documents presented in the Supreme Council of National Defense (CSAT) by the Romanian Intelligence Service (SRI), the Foreign Intelligence Service (SIE), the Special Telecommunications Service (STS), and the Ministry of Internal Affairs.