Venice Commission: Annulment of elections must be the last resort

Democratic elections must reflect the "free expression of the people's opinion", according to Article 3 of Protocol No. 1 to the European Convention on Human Rights (ECHR), and the annulment of elections is an extreme measure and can only be justified in exceptional circumstances, the members of the Venice Commission show in the report published yesterday, following the verifications requested by the Parliamentary Assembly of the Council of Europe, after the Constitutional Court of Romania annulled the presidential elections in our country on December 6, 2024. The Commission stressed that decisions regarding the annulment of elections must be well motivated, transparent and not based exclusively on classified information.

Regarding the situation in our country, the Venice Commission stated that the decision of the Constitutional Court of Romania was based on the non-transparent use of digital technologies and artificial intelligence in the electoral campaign, which generated a distortion of equal opportunities between candidates. This type of external influence on voters, although not directly linked to the voting process, represents a serious threat to the sovereignty of the state and the integrity of the democratic process. The Commission also noted in the report that the basis for the CCR's decision to annul last year's presidential elections was the publication by President Klaus Iohannis of classified information on external interference presented at the CSAT meeting of 28 November 2024, as well as the failure to comply with electoral legislation. However, the Venice Commission draws the attention of the authorities in Bucharest that the use of such information must be accompanied by transparent procedures, in order to avoid suspicions of arbitrariness.

Regarding the decision of the Constitutional Court which on 6 December 2024 practically revised the decision of 2 December validating the first round of the presidential elections, a revision carried out on the basis of new information, the Venice Commission points out that this is considered an exceptional practice, but justified in the event of a serious violation of electoral principles and state sovereignty.

According to the cited report, the Venice Commission considers that voters must have confidence in the validity of their vote, and in this context, the annulment of elections should be allowed only when the irregularities are so serious that they significantly affect the result of the vote, provided that adequate procedural guarantees are ensured, in order to avoid any form of legal arbitrariness.

Furthermore, the Venice Commission points out that ex officio decisions of constitutional courts, if permitted by law, must be clearly regulated and intervene only in exceptional cases. Such intervention must protect voters' confidence in the legitimacy of the electoral process and comply with international standards.

• The influence of external factors and online campaigns

With regard to the increasing importance of online campaigns and the use of advanced technologies, such as artificial intelligence, which pose new challenges to electoral integrity, the document states that states must regulate the consequences of online propaganda and combat disinformation, while ensuring respect for freedom of expression. The central authorities of each Council of Europe member state should also ensure that the rules on electoral financing are applied strictly to online campaigns, including restrictions on anonymous or external contributions.

Therefore, following the report, the Venice Commission made the following recommendations to Council of Europe member states:

- Decisions to annul elections must be taken by the highest electoral body, and these decisions must be subject to review by higher courts.

- The power of constitutional courts to invalidate elections ex officio must be strictly limited to clearly regulated cases.

- Annulment of elections can only be justified if proven irregularities had a real impact on the outcome.

- The decision-making process must include guarantees of fairness, transparency and reasonable deadlines.

- States must regulate the use of online resources in campaigns and ensure the transparency of electoral advertising.

- States must take measures to prevent cyberattacks and to maintain the integrity of the electoral process.

The Venice Commission report reaffirms the need for clear and rigorous standards in the process of contesting election results, designed to ensure the balance between protecting electoral integrity and respecting the will of the people. In an increasingly interconnected world, adapting electoral legislation to new technological realities is crucial for strengthening democracy and the rule of law.