Romania’s Annulled Election: A Test for European Democracy
In a year marked by pivotal elections across the globe, Romania’s presidential race has become embroiled in controversy. Just days before the crucial second round of voting, the country’s Constitutional Court took the unprecedented step of invalidating the first round’s results. This dramatic decision, which mandates a fresh start to the electoral process, was triggered by the unexpected surge of far-right candidate Calin Georgescu and concerns over potential Russian interference contributing to his success. The annulment stems from recently declassified reports by the Romanian Supreme Council of National Defense (CSAT) and the Directorate for Investigating Organized Crime and Terrorism (DIICOT), which pointed to a vast network of automated online accounts, or bots, on TikTok allegedly manipulated to boost Georgescu’s popularity. This revelation has ignited a firestorm of debate, raising fundamental questions about the judiciary’s role in safeguarding elections and the very nature of democratic processes in the digital age.
Georgescu, a known critic of NATO and a recipient of accolades from Vladimir Putin, has vehemently denounced the Constitutional Court’s decision, labeling it a "formalized coup d’état" and an assault on Romania’s democratic foundations. In stark contrast, outgoing Prime Minister Marcel Ciolacu lauded the court’s intervention, asserting that it was the "only correct solution" following the release of classified information. Ciolacu insists that the declassified documents irrefutably prove a distortion of the vote "as a result of Russia’s intervention.” This stark divergence in reactions underscores the deep political fissures within Romania and highlights the complexities of balancing electoral integrity with democratic principles. The core question at stake is whether national judicial bodies are justified in overturning election results based on suspected or confirmed online manipulation and interference.
This question extends far beyond Romania’s borders, posing a significant challenge for the European Court of Human Rights (ECtHR). The case of Bradshaw and others v the United Kingdom brings this issue into sharp focus. This case revolves around allegations that the UK government failed to adequately investigate and regulate Russian disinformation and interference in several UK elections, potentially violating its obligations under Article 3 of Protocol 1 of the European Convention on Human Rights (ECHR), which guarantees free elections. Both the Romanian situation and the Bradshaw case illuminate a growing tension between the ECHR’s mandate to ensure democratic elections and the increasingly sophisticated attempts by malicious actors to subvert these very processes. As legal experts grapple with this emerging dilemma, analyzing the ECtHR’s existing jurisprudence on free elections can offer valuable interpretive guidance.
The ongoing debate about election disinformation often centers on the potential conflict between combating online falsehoods and safeguarding freedom of expression. Consequently, the right to free elections, protected under Article 3 of Protocol 1 of the ECHR, has sometimes been overshadowed. This provision, the product of extensive deliberation and debate, stipulates that Contracting Parties must hold free elections at reasonable intervals by secret ballot, ensuring the free expression of the people’s will in choosing their legislature. The concise wording of this article raises crucial questions about the extent to which disinformation and manipulative interference can undermine the principles of free and fair elections as enshrined in the Convention. While the ECtHR has yet to directly address the issue of disinformation in its free elections case law, the Court has dealt with several cases involving electoral falsehoods and voting irregularities.
The ECtHR’s jurisprudence, while not explicitly mentioning "informed voting" as a requirement, often emphasizes the importance of voters having access to accurate information when making their choices. The Court distinguishes between intentional deception and unintentional errors or misunderstandings. Cases like Melnychenko v Ukraine and Sarukhanyan v Armenia demonstrate this distinction. In Melnychenko, a candidate’s deregistration due to inaccurate residency information was deemed a violation, as the inaccuracy was motivated by a fear of persecution, not a desire to mislead voters. Similarly, in Sarukhanyan, a candidate’s misrepresentation of property ownership was not considered a violation due to the lack of bad faith. The Court’s focus is on the intent behind the misinformation rather than the inaccuracy itself.
This distinction between intentional deception and innocent error is further illustrated in Krasnov and Skuratov v Russia. Here, two candidates were disqualified for providing false information. The Court found the disqualification justified for one candidate who had intentionally misrepresented his position to garner votes, but not for the other, whose inaccuracies were deemed minor and lacking in bad faith. This demonstrates the Court’s emphasis on the potential impact of false information on voters’ ability to make informed decisions. In the Romanian case, however, the issue is not the conduct of the candidate himself, but the alleged manipulation of online platforms to artificially inflate his support, raising a different set of legal challenges. The ECtHR has also addressed cases involving ballot tampering and voting irregularities, establishing a pragmatic and consequentialist approach. The Court focuses on whether there is credible evidence that the alleged interference could reasonably be expected to have significantly influenced the election outcome.
In cases like Babenko v Ukraine and Kerimova v Azerbaijan, the ECtHR found no violation of the right to free elections despite evidence of irregularities, as the applicants failed to demonstrate how these irregularities had decisively altered the results. Conversely, in Davydov and Others v Russia, the Court found a violation due to credible evidence of widespread irregularities that could have plausibly affected the election’s outcome. Applying this framework to the Romanian situation highlights two crucial considerations: the coordinated and deceptive nature of the alleged Russian interference through TikTok bots, and the potential impact of this interference on voter choices and the overall election outcome. While evidence of coordinated manipulation seems strong, establishing a definitive causal link between the interference and the election results may prove more challenging.
The ECtHR’s established approach to free election cases involving disinformation and interference is characterized by pragmatism and a degree of caution. The Court typically grants a wide margin of appreciation to member states in managing their electoral affairs. Much of the existing case law deals with states’ lack of action in response to alleged interference, with the Court generally requiring only that states take some investigatory steps to address the issue. The Romanian situation presents a different scenario: the state took action, but the action was arguably drastic – annulling the entire first round of voting. This resonates with cases like Kerimova v Azerbaijan, where the Court criticized excessive measures taken by the state. Therefore, it is conceivable that the ECtHR might view the Romanian Constitutional Court’s annulment with some skepticism, especially if the evidence fails to demonstrate a clear and decisive link between the Russian interference and the election results.
However, if the Court were to uphold the annulment, it would signal a significant shift in its approach, potentially strengthening the positive obligations of member states to proactively protect elections from disinformation and interference. This would move beyond the current focus on retroactive measures, towards a more proactive framework requiring states to anticipate and prevent such threats. As disinformation campaigns and foreign interference become increasingly prevalent, the ECtHR may have to reassess its approach. The Bradshaw case, currently under consideration, provides the Court with an opportunity to clarify and strengthen these positive obligations, offering much-needed guidance to member states navigating the complex landscape of elections in the digital age. The Romanian case serves as a stark reminder of the evolving challenges to democratic processes and the urgent need for robust legal frameworks to ensure free and fair elections in the 21st century.