Decision of the Constitutional Court of Romania on the Presidential election as a precedent for the application of the provisions of “militant democracy” in the context of hybrid threats

The 2024 Romanian presidential elections and the subsequent decision by the Constitutional Court of Romania (Decision No. 32 of December 6, 2024) to annul the first-round results constituted a landmark event that garnered significant international attention. This case highlights the complexities of applying the concept of “militant democracy” in the face of contemporary hybrid threats. This article analyzes the Romanian electoral precedent, focusing on the Constitutional Court’s key arguments for annulling the results. These included systemic disinformation, abuse of digital technologies (particularly social media and TikTok algorithms), undisclosed political advertising lacking proper labeling, and glaring discrepancies in the campaign financing of the pro-russian candidate. The documented instances of external interference, cyberattacks, and manipulation originating from russian sources, along with the widespread dissemination of disinformation that significantly distorted voter will and violated principles of equal opportunity, proved decisive for the Court’s ruling. The Constitutional Court of Romania’s decision was not solely based on formal violations of electoral law but also on an expansive interpretation of its powers as a guarantor of the supremacy of the Constitution. The Court employed a systemic method of interpretation, linking Article 146(f) (powers to ensure adherence to the presidential election procedure) with Article 142(1) of the Romanian Constitution (“The Constitutional Court is the guarantor of the supremacy of the Constitution”). This approach allowed the Court to assess the substantive conformity of the electoral process with the fundamental principles of democracy, the rule of law, and sovereignty. Such an interpretation is critically important in an era where external forces seek to undermine democratic institutions not only through direct falsification but also through indirect, more sophisticated methods. The article also compares the Romanian case with the situation in Germany, where the Alternative for Germany (AfD) party, despite being classified as a “suspicious case” (and subsequently a “confirmed right-wing extremist group”) by the Federal Office for the Protection of the Constitution, successfully competed in the Bundestag elections. This divergence underscores the lack of a unified approach to protecting democratic processes across different European Union countries and the inherent difficulty in balancing the protection of constitutional order with the safeguarding of political competition in the context of escalating hybrid threats. Particular attention is given to the potential challenges for Ukrainian democracy in the context of future post-war elections. Unlike the Constitutional Court of Romania, the Supreme Court of Ukraine, which, according to national legislation, reviews cases concerning the establishment of election results, lacks the authority for official interpretation of the Constitution. This limits its ability to thoroughly justify decisions to invalidate elections through the lens of protecting the constitutional order from hybrid threats, even though it can interpret laws. This poses a significant problem for countering russia’s existential hybrid influence on electoral processes, which can manifest through large-scale disinformation campaigns, digital technology manipulation, and cyberattacks. Thus, the Romanian precedent of 2024 serves as a valuable lesson for the international community, demonstrating the importance of adequately protecting democratic principles and electoral procedures in the face of constantly evolving threats. It emphasizes the need to develop effective mechanisms that allow states not only to formally adhere to procedures but also to counteract new, complex challenges that can undermine the essence of democratic expression. Safeguarding democracy in the era of hybrid threats requires a comprehensive approach that combines legal instruments with an assessment of the substantive conformity of electoral processes to fundamental constitutional principles. This case also raises questions about the necessity of reviewing the powers of judicial bodies in various countries to effectively counter external interference and manipulation in elections.