In a historical year for global democratic elections, Romania’s presidential election is the latest European election to have elicited controversy. Days prior to the scheduled second round of voting, the country’s constitutional court annulled the results of the first round voting results. The constitutional court’s decision, which will necessitate a fresh vote, arose in response to the unforeseen success of far-right candidate Calin Georgescu and the potential Russian interference which may have accounted for this success. Specifically, the annulment stems from (now declassified) reports from the Romanian Supreme Council of National Defense (CSAT) and the Directorate for Investigating Organized Crime and Terrorism (DIICOT). Both bodies suggested that the first round of voting had been tainted by an extensive network of automated online accounts (bots) on TikTok, which sought to influence the election in Georgescu’s favour. Georgescu, a NATO sceptic and recipient of praise from Vladimir Putin, has labelled the Constitutional Court’s decision as a ‘formalised coup d’etat’ and attack on Romania’s democratic order. Conversely, outgoing Romanian Prime Minister Marcel Ciolacu praised the court for adopting ‘the only correct solution after the declassification of the documents’, which he claims demonstrated a distortion of votes ‘as a result of Russia’s intervention.’
The Constitutional Court’s annulment of voting results and the divergent reactions from political officials should elicit a crucial question of whether it is justified for the national judiciary to invalidate the results of an election on the basis of (suspected or proven) online manipulation and interference with votes. Aside from the immediate relevance in Romania, this timely question lies at the forefront of imminent inquiry for the European Court of Human Rights (ECtHR). The communicated case of Bradshaw and others v the United Kingdom highlights this. This communicated case surrounds allegations from MPs that the United Kingdom failed to (i) investigate and (ii) implement an effective regulatory framework to combat Russian disinformation and interference in several UK elections, in violation of the UK’s positive obligations to protect free elections under Article 3 of Protocol 1 of the European Convention on Human Rights (ECHR). The substantive issue raised in Bradshaw, alongside Romania’s current electoral debacle, epitomizes an emerging tension between the ECHR obligations to secure democratic elections and the proactive attempts by hostile actors to undermine said elections. As legal stakeholders increasingly attempt to reconcile such tensions, this blog post identifies analytical approaches in the ECtHR’s free elections jurisprudence that could provide interpretive guidance on these timely issues.
Disinformation, Interference, and Free Elections
Academic debates about election disinformation consistently elicit concerns regarding how laws curtailing online falsehoods could undermine the right to freedom of expression. It is, therefore, understandable that the right to free elections has become somewhat neglected in such debates. The right to free elections is protected under Article 3 of Protocol 1 of the ECHR, which entered into force in 1954. The construction of this provision, which was the subject of extensive debate and controversy in the development of the First Protocol, resulted in the following text:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
The modest phrasing of this provision begs the critical question of whether, and if so, to what extent, the spread of disinformation and manipulative interference could frustrate free elections as articulated under the Convention. While the ECtHR is yet to explicitly address the issue of disinformation in its free elections case law, the Strasbourg Court has amassed several cases where election falsehoods and voting irregularities have been key issues at play.
False disclosures and informed voters
The text of Article 3 Protocol 1 does not expressly impose an obligation to ensure that voters remain properly informed’ voters remain properly informed when approaching the ballot box. However, the ECtHR has taken several opportunities to promote informed voting when expounding on the necessary conditions for free elections to occur. In such case law, the Court consistently delineates between intentional deception and innocent (or explainable) error. Take, for example, Melnychenko v Ukraine. An election candidate was deregistered from standing for election after he had disclosed inaccurate details of his ‘habitual’ residence to a local electoral commission. The ECtHR found that this deregistration constituted a violation of the applicant’s right to stand for election. This was due to the Court’s reasoning that the applicant had only misrepresented his residency details due to his ‘fear of persecution in Ukraine.’ Stated differently, his motivation was to avoid compromising his own physical safety as opposed to an intentional deception of voters. This absence of deceitful intention was also influential in Sarukhanyan v Armenia. Here, the applicant submitted false details to an electoral commission regarding his ownership of a property. Specifically, he had listed his mother as the sole owner despite himself having an ownership stake. The ECtHR acknowledged that the requirement to ensure veracity in such disclosures from election candidates served an ‘undoubtedly legitimate’ aim under the Convention to prevent voters from being ‘misled by false representations.’ However, the Court nonetheless found that Armenia had violated the applicant’s right to stand for election because the applicant had ‘good reason to believe that the information was accurate’ and the lack of ‘bad faith’ underpinning his (albeit inaccurate) submission.
The Court’s distinction between erroneous and deceptive disclosures was further clarified in Krasnov and Skuratov v Russia, involving two election candidates who Russia had disqualified from standing in general elections. Both candidates had submitted untrue information to election authorities. The first applicant claimed to be head of a district council (despite no longer holding such a role), while the second applicant listed his position as acting head of a law department (while merely employed as a professor in the department). The ECtHR considered it an ‘incontestably’ legitimate aim for states to require election candidates to submit accurate information ‘to the best of their knowledge.’ Doing so, the court reasoned, enabled ‘voters to make an informed choice’ and prevented voters from being ‘misled by false representations.’ The ECtHR discerned that the first applicant had intentionally provided ‘substantially untrue information’ and ‘cloaked himself in the authority associated in the voters’ eyes with a position he no longer held.’ Conversely, the second applicant, having disclosed a more minor set of inaccuracies regarding his professional status, had not ‘acted in bad faith’. The second applicant had also been disqualified for misleading voters about his ties to the Communist Party. At no point, however, did the Court find that he had denied such past political allegiances. Drawing this distinction between active deception and a merely erroneous omission of information, the Court found that Russia’s interference was justified for the first applicant but not for the second applicant. Such reasoning illustrates a significant distinction between intentional falsehood and innocent error in the specific context of electoral candidate misconduct. Notably, however, such cases focus largely on the individual candidate dimensions of the right to free elections. In the case of the recent Romanian election annulment, the personal conduct of Georgescu does not prima facie appear to be deceptive. Moreover, the Constitutional Court’s predominant inquiry surrounds the illicit and artificial inflation of support for a candidate in a manner that could have affected voting outcomes. With this in mind, it is necessary to examine the Court’s examination of election tampering, irregularities, and the positive obligation for ECHR Contracting Parties to respond to such issues.
Ballot Tampering
While the ECtHR’s focus on deception was paramount in the above-mentioned cases, the Court also scrutinised the potential relevance of false information to voters. In Sarukhanyan v Armenia, for example, the ECtHR reasoned that the applicant’s false declaration (regarding the technicalities of his property status) would likely be of ‘minor importance’ to voters. Put differently, the Court struggled to see how the inaccuracy was seriously capable of ‘misleading the electorate.’ Conversely, in the aforementioned Krasnov and Skuratov v Russia, the ECtHR considered that the first applicant’s false disclosure (regarding his status as head of a district council) was ‘not a matter of indifference for the voters’ and plausibly ‘could have adversely affected their ability to make an informed choice.’ Addressing the second applicant, the Court doubted that his inaccuracies were ‘capable of misleading the voters’ to the point of decisively altering their ballot choices. Such language reflects the Court’s focus on whether electoral inaccuracies are likely to have a meaningful causal effect on voter choices.
Importantly, for situations like Romania’s election, the ECtHR also adopts a practical and consequentialist inquiry into voter irregularities and ballot tampering. Above all, the Court always considers whether applicants can point to credible evidence that alleged interference may be reasonably expected to have meaningfully sway election outcomes. In Babenko v Ukraine, for example, an election candidate alleged that ‘ballots of different candidates had been mixed up’ and that such tampering had thwarted the election result to his detriment. The ECtHR, however, did not agree with the applicant that Ukraine had violated its obligation to secure a fair election because the applicant had not illustrated how (if at all) alleged irregularities had ‘specifically affected’ ballot results. He had received approximately ten thousand votes fewer than the ultimate electoral victor, casting doubt in the Court’s mind that the potential tampering (even if proven) would have been sufficiently extensive to decisively shift the election outcome. Similar facts arose in Kerimova v Azerbaijan where, despite identifying that there had indeed been ‘impermissible alterations’ with polling data from two election officials, the Court found that Azerbaijan had violated its obligation to hold free and fair elections by annulling the election and invalidating its results. Here, the Court reasoned that the evidence of alleged interference did not amount to sufficient evidence that the polling distortions had decisively altered electoral results. In fact, the action to invalidate the election results actually did more to thwart the true ‘opinion of the electorate’ than the possible distortions. This contrasts sharply with Davydov and Others v Russia, again involving election candidates who alleged that electoral commissions had ‘falsified the results of the elections by ordering recounts’ that ‘systematically’ increased the ruling party’s share. Here, the Court noted that the allegations were corroborated by independent election observers and Russia’s investigative efforts had been limited to ‘trivial questions of formalities’ while ‘ignoring evidence pointing to serious and widespread irregularities’ that could plausibly have affected the outcome of the election.
The Case of Romania
It is important to appreciate where Romania’s current electoral controversy sits alongside the ECtHR’s existing body of free elections case law where issues of disinformation and improper interferences are at stake. Based on the above-mentioned cases, two analytical pressure points stand out. Firstly, where false or misleading information is involved, the Court’s analysis is often informed by its consideration of whether such information has been disseminated in a coordinated and deceptive manner. The more deceptive the information is, the more the Court is likely to agree that states have a justification to intervene in the electoral process. Conversely, where misleading information is the result of innocent error (or some other objectively understandable explanation), the Strasbourg Court is decidedly more reticent to intervene. For the Romanian election, the evidence at hand appears to clearly demonstrate intentional coordination. The scale of automated accounts, combined with evidence of financial sums originating from Russian sources in South Africa, is very likely to meet the threshold of coordination that the Court has focused on thus far. Secondly, and relatedly, the ECtHR consistently places focus on whether ballot tampering and election irregularities (if proven) are likely to decisively influence voters and election results more broadly. As this question is more closely connected to the positive obligations under Article 3 of Protocol 1, it would appear vital that the decision of the Constitutional Court to annul the election is based on evidence that Russian interference on TikTok was likely to have a decisive effect on election outcomes. While the success of far-right candidate Georgescu appears suspicious, it may not be a foregone conclusion that there was a direct and decisive causal link between attempted interference and the true opinion of voters.
Positive Obligations: A New Beginning for the Strasbourg Court?
What does the existing free elections case law tell us about Romania’s current electoral dysfunction and its obligation to ensure free elections? Based on the ECtHR’s pragmatic and somewhat cautious approach thus far, it is conceivable that the Court would look unfavourably on the Constitutional Court’s annulment if the evidence does not clearly show that Russian interference in TikTok was a decisive driver in shifting voter choice. However, much of this would depend on how the Court interpreted the evidence which formed the basis of the Constitutional Court’s decision. Generally speaking, the Court is highly conscious of the wide margin of appreciation that Council of Europe States have in managing their electoral affairs. Moreover, in much of the existing case law, the Court is called upon to examine the state’s lack of action in the event of alleged interference, leading the Court to often only crystallise the principle that states must simply take some investigatory steps to ascertain and rectify interferences in the domestic electoral process. Here, the opposite could be alleged- that Romania took action, but the action was too immediate and drastic than was called for in the circumstances. Considering how the Court expressed a critical view of overly drastic measures in cases such as the above-mentioned Kermiova v Azerbaijan, it is possible that the Court could similarly show a disdain for the expeditious actions taken by the domestic judiciary in Romania. If the Court were to assess this action and find it justified, it would signify an important step in a new direction whereby the ECtHR could proactively refine and strengthen the positive obligations for Council of Europe (CoE) States to protect elections from disinformation and anti-democratic interference. To date, the existing case law centres on how States have acted in a retroactive manner, attempting to fix an election that has already been broken. If the ECtHR were to provide more guidance in this area, it could spell out more concrete guidance about what states should do to proactively and preemptively protect elections from such threats. As the problem of disinformation and interference increases, and as the Romanian fiasco demonstrates, it is likely that the Strasbourg Court will have to face this challenge eventually. The communicated case of Bradshaw and others v the United Kingdom may well provide the opportune moment for the Court to lay the scaffolding for bolder and more sophisticated obligations for Council of Europe States to safeguard free elections from disinformation and unwanted interference going forward.
