PresidentialElection/Venice Commission: Annulment of any election should only be allowed in exceptional circumstances

  The Council of Europe's Venice Commission has published Monday a report on the issue of annulment of the presidential election in Romania by the Constitutional Court, in which it says, among other things, that the annulment can only be allowed in exceptional circumstances.The report regarding the conditions and legal standards whereby a constitutional court could invalidate elections responds to a request last month from Theodoros Rousopoulos, President of the Parliamentary Assembly of the Council of Europe (PACE), according to a press release of the Venice Commission on Monday.While the report draws on features from a recent case in Romania - concerning invalidating elections ex officio, digital technologies in electoral campaigns, and external influence by another State - it is not for the Venice Commission to go into the facts of the Romanian case, or into the examination of the decision by the Romanian Constitutional Court. The question put to the Venice Commission is of a general nature and refers to an analysis of general comparative constitutional law and European and international standards.The report stresses that only under certain circumstances - and if multiple conditions and safeguards are met - can a constitutional court invalidate elections.Bearing in mind that courts - including constitutional courts - are characterized by being reactive, not agenda-setting, the Venice Commission takes the view that the power of constitutional courts to invalidate elections ex officio should be limited to exceptional circumstances and clearly regulated, to preserve voters' confidence in the legitimacy of elections.International standards neither impose nor prohibit in principle ex officio decisions of constitutional courts."The Code of Good Practice in Electoral Matters requires an effective system of appeal and states, in particular, that 'the appeal body must have authority to annul elections where irregularities may have affected the outcome,' the report reads.It should be possible to challenge election results based on violations of electoral rights, freedoms and interests not only by the State, but also by public and private electoral stakeholders - bearing in mind that the State has positive obligations to guarantee free elections including a fair campaign.Procedural safeguards are crucial, as determined by European Court of Human Rights case law, and any decision to cancel an election must be sufficiently explained with clearly outlined facts proving serious irregularities.Campaign propaganda usually falls under the protection of freedom of expression, unless it exceeds permissible limits, e.g. in the form of hate speech against political opponents.While online campaigning based on social media platforms may be novel in form and impact, its use should still be subject to the general rules on campaign finance and transparency.Proving violations of the law by online campaigning and via social media is challenging. Well-reasoned, transparent decisions are crucial and 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.The Venice Commission also makes several recommendations.Thus, the Venice Commission considers that decisions to annul election results should be taken by the highest electoral body and such decisions should be reviewable by the highest judicial body, the constitutional court or a specialized electoral court, where such a judicial body exists.However, the power of constitutional courts to invalidate elections ex officio - if it exists - should be limited to exceptional circumstances and clearly regulated, the Commission recommends, which also states that "the annulment of part of the elections or of the elections as a whole may be permitted only in very exceptional circumstances" as a last resort (ultima ratio in the original - ed.) and provided that irregularities in the electoral process have affected the outcome of the vote.The decision-making process concerning the results of the elections must be accompanied by adequate and sufficient guarantees ensuring in particular a fair and objective procedure and a sufficiently reasoned decision, based on clearly established facts proving irregularities which are so significant as to have influenced the outcome of the elections; the affected parties must have the opportunity to present their views and evidence, and the prerogatives of the judge examining electoral matters should be guided and limited by the conditions provided for by law; decisions must be taken within reasonable time limits.The Venice Commission also believes that it should be possible to challenge election results on the grounds of violations of electoral rights, freedoms and interests by the state, public and private electoral actors, as well as on the basis of the influence of the media and, in particular, social media, including those sponsored and financed from abroad.States should regulate the consequences of information disruptions, cyberattacks and other digital threats to electoral integrity; candidates and parties should be granted fair and equitable access to online media, and regulations should be put in place to ensure that artificial intelligence systems of internet intermediaries do not favour certain parties or candidates over others.The general rules on campaign financing and transparency should also be applied to online campaigning via social media platforms; states should also regulate that online electoral advertising must be marked as such and must be transparent, and social media platforms are required to disclose data on political advertising and its sponsors.