The story of thecancellation of the elections of the Head of State in Romania carried out by the national Constitutional Court due to the significant implications that reveal the existence of a real democratic emergency.
On the merits, the Court maintains, on the basis of “Information Notes” produced by the secret services of the Ministry of the Interior, that the electoral process was flawed “throughout its development and in all phases from multiple irregularities… which distorted the free and correct nature of the voting experience expressed by citizens and the equal opportunities of electoral competitors, influenced the transparency and correctness of the electoral campaign and have violated the legal provisions relating to financing”. In fact, according to her, the voters’ vote would have been manipulated due to the “violation of electoral legislation by digital technologies and artificial intelligence… as well as through the financing of the electoral campaign from undeclared sources, including online”. Simply put, the Court believes that digital tools were not used correctly and fairly and that, in any case, it is not clear who financed the electoral campaigns of some candidates.
Therefore, important considerations emerge from the question, especially if read in a comparative way with the Italian experience. In fact, first of all, the competences and the very nature of the Romanian Constitutional Court are important, which – precisely from the reading of the decision in question – enters into the merits of the matter on the basis of an investigation provided by the Executive, in particular by the Ministry of Internal. In relation to this it should be highlighted that the current Prime Minister, Marcel Ciolacuis a candidate who came third in the electoral competition. Unlike the Italian constitutional justice system, which has no jurisdiction over the election of the Head of State – in this regard we remember that Romania is a semi-presidential republicwhile ours is parliamentary, so the President of the Republic is not directly voted by the citizens – it should be highlighted that our Constitutional Court mainly carries out a review of the legitimacy of laws.
However, in our system, an institution similar to that provided for by the Romanian Constitution regarding elections of the Head of State is that provided for by art. 66 of our fundamental Charter, which regulates the principle of verification of powers, as “Each Chamber judges the admission qualifications of its members and the arising causes of ineligibility and incompatibility”. In fact, since our system provides for the election by citizens of only parliamentarians, it was provided for by our Founding Fathers – in perfect continuity with the art. 60 of the Albertine Statute – that the judgment on elections is delegated, as regards the Chamber, to the Elections Committee, while as regards the Senate, to the Elections and Parliamentary Immunities Committee. In light of this, the verification of electoral regularities of parliamentarians is the responsibility of these bodies of the Chambers and is a typical consequence of parliamentary self-declaration, sometimes criticized by the doctrine as it represents an anomalous situation in which the controller and the controlled coincide.
It must also be said that in relation to this aspect, in the Constituent Assembly there was an interesting debate on which solution to adopt and, among the possibilities, the hypotheses of control carried out by the Constitutional Court were also subjected to scrutiny – as expected, currently, by the Romanian Constitution for the election of the President of the Republic – already contemplated, among other things, by the Austrian Constitution of 1920, or by the verification carried out by a special Tribunal, made up of parliamentarians and magistrates, as it was regulated also by the Weimar Constitution of 1920, in order to avoid the two figures of controller and controlled from coinciding.
In light of this, a question arises spontaneously: in the current Romanian system, which is based on a democratic constitution and which believes it finds its source of inspiration in European principles – taking into account the fact that the country has also been part of the European Union since 2007 and that, currently , the Vice President of the European Parliament, is Romanian Victor Negrescu – what is legitimate and what is illegitimate? It is clear that there are many doubts that arise around the Romanian democratic emergency but these must necessarily find answers regardless of mere constitutional dynamics.
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