–Bianca Selejan-Gutan, PhD, Professor of Constitutional Law, Lucian Blaga University of Sibiu, Romania
[T]he right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion. (…) Universal suffrage has become the basic principle (see Mathieu-Mohin and Clerfayt v. Belgium, citing X v. Germany, no. 2728/66, Commission decision of 6 October 1967.)
Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1. (European Court of Human Rights’s case-law in matters of electoral rights, reiterated in judgments such as Alajos Kiss v. Hungary of 20 May 2010 and Anchugov and Gladkov v. Russia of 4 July 2013).
These statements of the European Court of Human Rights, well-known in its case-law on Article 3 of Protocol no. 1 to the Convention which guarantees the electoral rights, are more significant than ever in the present context of the Romanian presidential elections. The Court has reiterated these principles in cases related to the disenfranchisement of detainees and of persons with disabilities (Hirsch v. UK and Alajos Kiss v. Hungary jurisprudence, respectively), which the Court held constituted a violation of the fundamental right to vote.
In this post, I inquire whether the same reasoning would apply by analogy to a different ”group or category of the general population”, specifically state nationals residing abroad. The events during the first ballot of the Romanian presidential elections held on November 2, 2014 could provide a strong case.
1. Romanians Abroad
Romanian law on presidential elections states that polling stations can be organized abroad (by order of the Minister of Foreign Affairs) in the headquarters of the Romanian diplomatic representations, and elsewhere in the country with the agreement of the host state.
Since 2007, the number of Romanian citizens abroad in EU member states has increased exponentially. The Romanian Government even established a “minister for the Romanians of everywhere” and there are deputies in the Romanian parliament “elected for the diaspora”. Even the Romanian Constitution, in an ethnocentric tone, says, in its Article 7, that “the State shall support the strengthening of links with the Romanians living abroad”. One of the means of “strengthening” these links, especially with the Romanian citizens living abroad, is facilitating their right to vote.
2. The First Ballot
Here is what happened in connection with the presidential election on November 2. The Government (whose head, prime-minister Victor Ponta, was also a candidate in the presidential elections), through the ministry of Foreign Affairs, decided, contrary to available data on the number of Romanian citizens living abroad, to organize a lower number of polling stations in major European countries than it had organized in 2012 (295 stations this year as opposed to 306 stations in 2012).
The difference seems minor, but stations located in places with important but rather isolated Romanian communities, like Las Palmas de Gran Canaria, were eliminated, whereas new stations were organized in places where the Romanian community is scarce, like Sicily. On the other hand, the interest for this poll is enormous (as the current President’s tenure is limited) and a greater number of Romanians living abroad wished to exercise their right.
Most of the polling stations, besides being situated at hundreds of kilometers from many compact Romanian communities of thousands of people, were poorly staged: insufficient staff and voting stamps, a slow and rigid procedure, lack of organization in light of the high number of voters on the spot. The result was that thousands of voters queued for hours in front of the Romanian embassies and many of them were refused the right to vote at 9pm, when the stations closed, despite vivid protests from the hundreds of persons still present to the gates. Under Romanian law, those present in the voting room can vote even after polls close, and extending the voting time is not an offense. Moreover, Romanian law also prohibits hindering, through any means, the free exercise of the right to vote. This is considered a criminal offence punishable by imprisonment for 6 months to 3 years.
European human rights law suggests that the principle of effective rights has been infringed. This principle imposes the interpretation of the law in the sense of ensuring “concrete and effective rights rather than theoretical and illusory ones”, the law being here an instrument and not a purpose. A too rigid interpretation (the voting stations were closed at 9 p.m. “because the law so provides”) is not an expression of the rule of law, but the exact opposite, in such a case. Since the law itself allows the extension of the voting time, in such an exceptional case, when hundreds of voters lined in front of the precinct with the clear intention of exercising a fundamental democratic right, and with at fault of their own in the slowness of the proceedings, a more flexible interpretation would be justified.
3. The Second Ballot
After the first ballot elections, the Government and the Ministry of Foreign Affairs declared their commitment to solving these problems and to ensuring the free exercise of the right to vote of citizens abroad. But no true measures appear to have been taken. The electoral law was not changed to either create more polling stations or to extend the voting time for the second ballot. The Government, through the Minister of Foreign Affairs, had maintained that the Constitution prevented them from changing the law by government ordinance. Yet the Constitutional Court had itself held, in an earlier decision, that the electoral law could indeed be modified by Emergency Government Ordinance if the changes would not affect the existence and benefit of electoral rights. In this case, changing the law would have meant an enhancement of electoral rights, and therefore would have met the Court’s test. In the end, the Minister of Foreign Affairs resigned and the role was filled by an ally of prime-minister-candidate Ponta.
Predictably, the second ballot vote on November 16 proved the gravity of the problem. There was a higher number of voters at the stations (more than double, compared to the first ballot). Thousands were unable to exercise the right to vote. And many more were subject to maltreatment by local enforcement when the embassy staff called the police to subdue the crowd that had formed to protest the closing of the polling stations.
The exercise of democracy, respect for the rule of law and the fundamental principles of human rights remain a challenge for Romania. A judgment from Strasbourg would be an effective way to help catalyze important changes in the country’s electoral system.
4. The Results of the Electoral Campaign
The press described the campaign as the dirtiest in the last 25 years. Two candidates competed in the second ballot for the presidency: the social-democrat acting prime-minister Victor Ponta, credited with the first chance and who earned 40% in the first ballot, and the liberal Klaus Iohannis, mayor of the city of Sibiu/Hermannstadt, who won 30% in the first round. The latter, of German origin and of protestant religion, was attacked by his opponent on the grounds that he was “not Romanian and orthodox” and that the country could not be run by a “foreigner”. The whole campaign of the social-democrat candidate was based on reviving nationalism (with exclusive slogans like “proud to be Romanian”). Another main topic of the campaign was corruption, as a few `hard` corruption cases emerged during this time, involving representatives of all parties, but mainly social-democrats (including relatives and close friends of the prime-minister).
Nevertheless, Iohannis won the vote with over 54%. The final ballot saw a huge turn-out compared to previous elections: over 62% of eligible voters participated. Observers have credited the high turnout to voters’ dissatisfaction to the treatment of Romanians abroad and the anti-system youth vote.
Iohannis is the most famous and one of the most effective mayors of Romania, with over 14 years in office. He is also considered an exponent of the “German spirit”: order, integrity, honesty. His campaign’s main slogan was “For a Romania of things well done”.
Iohannis has a difficult task ahead of him in both internal and external policy, and it remains to be seen how he will rise to the high expectations.
Suggested Citation: Bianca Selejan-Gutan, Special Report on Romania’s Presidential Election, Int’l J. Const. L. Blog, Dec. 3, 2014, available at: http://www.iconnectblog.com/2014/12/special-report-on-romanias-presidential-election
 See http://goo.gl/vXKE14; http://goo.gl/hN4ThD.
 See http://goo.gl/57ba0b.
 See http://goo.gl/vemK1A; http://goo.gl/n8kqhF; http://goo.gl/9kI0T8.