The Council of Europe’s Venice Commission has published today an urgent report on conditions and legal standards whereby a constitutional court could invalidate elections, responding to a request last month from Theodoros Rousopoulos, President of the Parliamentary Assembly of the Council of Europe (PACE).
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.
With these conditions and safeguards in mind, the report conclusions include the following:
- International standards neither impose nor prohibit in principle ex officio decisions of constitutional courts. 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.
- Only under exceptional circumstances (ultima ratio principle) can election cancellations be allowed. 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.”
- 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.
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