An Anxious-Avoidant Court: Adjudicating Democratic Infrastructure in Călin Georgescu v. Romania

By Alain Zysset

The key feature of an anxious-avoidant attachment style is the ambivalence between seeking connection and seeking withdrawal. This can lead to inconsistent behaviours towards partners, displaying excessive closeness one time and abruptly retreating from the relationship the next time. There are analogous traits of an anxious-avoidant attachment style in the Court’s reasoning in Călin Georgescu v. Romania. The case concerned the annulment by the Romanian Constitutional Court of the entire presidential election process in which Mr Călin Georgescu, the ultranationalist and pro-Russian candidate in the race, was the favourite to win the first round. Georgescu alleged three separate violations under the ECHR, namely under Article 3 of Protocol No. 1 (right to free elections), under Articles 6 (right to a fair trial) and Article 13 (right to an effective remedy) and under Articles 10 (freedom of expression) and 11 (freedom of assembly and association).

Facts

The first round of the election was held on 24 November 2024. A second round was planned for 8 December 2024 since no candidate obtained an absolute majority of votes in the first round. While the Constitutional Court confirmed and validated the results of the first round on 2 December (it had previously ordered a recast of the votes based on a separate complaint), on 4 December the incumbent president, Klaus Iohannis, declassified intelligence documents pointing to cyber-attacks, by State and non-State actors, aiming at influencing the electoral process. In this connection, it was established that one candidate – not explicitly named in the relevant press release but identified by the media and the public as Mr Georgescu – was the beneficiary of a vast exposure on the social media platform TikTok. On 6 December, the Constitutional Court unanimously ruled that the entire presidential electoral process should be annulled and resumed in full at a later date. The two rounds took place on May 5 and May 18 and resulted in the victory of Bucharest mayor Nicușor Dan.

Judgment

There is much in the case that is emphatically said and equally, if not more, that is virtually silenced, reflecting the anxious-avoidant logic. The latter is not just reflected in the extremely short length of the judgment (36 paragraphs in total – contrast this with the 657 paragraphs of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland) but, more importantly, in the Court’s broader relation to democratic infrastructure – or the lack thereof. The Court rejected the claims of Mr Georgescu on admissibility grounds with respect to the two ‘positive’ ECHR rights, namely the right to free elections (Article 3 Protocol 1: the applicant accused the ruling party in Romania from interfering with the electoral process) and the right to a fair trial (Article 6: the applicant accused the Constitutional Court to have made its decision of annulment in a non-transparent manner without the possibility of challenge). To justify inadmissibility, the Court reiterated its historical case law in more than summary terms: on Article 6 (and 13), the Court rehearsed its categorical distinction between civil rights and political rights, arguing that Georgescu’s complaint under the right to stand for elections (the ‘active’ aspect of the right to free elections) fell in the latter category, and therefore outside the scope of protection of Article 6. On Article 3 Protocol 1, the Court relies on its quasi-canonical limitation that only elections of the national legislature fell within its scope, excluding presidential elections (albeit with some very limited exceptions). Under Articles 10-11, the Court flagged the absence of any factual and legal arguments raised by the applicant, concluding in equally short terms that the claim is ‘manifestly ill-founded’ (para. 34).

Analysis

So little said, so much unsaid – and equally much to decipher. The separation of powers has been a key concern of the Court in recent years. One can think of the flurry of cases concerning the capture of the judiciary by authoritarian populist forces in Hungary or Poland where the Court comes to examine the relevant infrastructural context of the country in a more expansive manner than its past case law would generally allow (see e.g. the ‘reorganisation’ of the Polish judicial system in Grzęda v. Poland (GC)). There is evidence of a genuine engagement with infrastructure on this level – and, to pursue the analogy, some (anxious) closeness. Yet, in its review of the ‘relevant legal framework’ in Georgescu, the Court could not be more withdrawn, limiting its review to a formalistic check-up on the relevant provision of the Romanian constitution guaranteeing that the president does not interfere with legislative power (para. 12-19). This comes in handy later, when discussing the first part of the applicant’s complaint: as a matter of past case law, the Court only extends its scrutiny to elections of the national legislature under A1-P3 (para. 21-25).

In a few lines of mere description, therefore, the Court patched any interstice for genuinely engaging with the renewed ways in which democratic infrastructure is eroded, and how apex courts domestically (over-)react, if they react at all. Some would reactivate the register of ‘militant democracy’ to critically map the role of courts, domestic or supranational, in this context. But militant democracy has a one-size-fits-all character that can hardly attend to what makes the current attack on democratic infrastructure distinct – that it is not the existential and formal conditions of democracy that are threatened but the hollowing out of democratic values within the form and the procedure. How equipped and disposed is the Court to address this?

Reengagement with the meaning of democracy could be therapeutic against entrenched avoidance patterns. In Georgescu, the Court however did not engage with the practice of the Romanian Constitutional Court concerning electoral proceedings. Yet, as explained recently, there are elements of significant interpretive innovation in that practice, which now requires presidential candidates to adhere to the ‘values of the constitution’ in addition to the usual formal criteria for standing. Another pattern, perhaps even more blatant, is the silence on the role of social media in election interference. In domestic proceedings the key question was whether the evidence of Russian interference via the social network TikTok could justify annulment. While the Court seems utterly withdrawn from these democratically crucial matters, other European bodies have now spoken: the Venice Commission – a body to which the Court generously appeals in other contexts – made it clear in an urgent report following the Romanian decision that: ‘interference with the electoral process by third parties acting from outside is not less detrimental and can have the same (or even more severe) consequences as a breach of election rules by candidates, political parties and State officials’ (para. 49). Will this facilitate more openness in the Court’s approach?

Georgescu highlights the underlying tension between the Court championing democratic rights – as parts and parcels of its celebrated ‘democratic society’ – and timidly engaging with their matching infrastructure without which these rights lose their very point and purpose. I have in prior work shown how, despite celebrating freedom of expression and free elections as ‘bedrock principles’ (e.g. Bowman v. U.K.), the Court’s review of electoral processes – its proportionality assessment – amounts to no more than a lip service paid to the restrictions presented by the respondent state party. In a forthcoming book[1], I suggest that the key coordinates of democratic erosion, being infrastructural rather than just agential, call for a principled revision of ‘democratic society’ suited for the populist age. This revised democratic society would also include (review of) the organisation of the public sphere. Indeed, the Court’s scrutiny of its cherished ‘media pluralism’ or its review of its beloved ‘institutional safeguards’ remain largely superficial when, say, a political opponent or journalist finds themselves entangled in predatory disciplinary procedures orchestrated by their own government (see e.g. Karácsony and Others v. Hungary (GC) and Ikotity and Others v. Hungary). It is time for the Court to ‘update’ its interpretive equipment in face of these insidious attacks. It can no longer suffice to require the form and the procedure of democracy, such as the mere ‘right to be heard’.

True, these patterns of avoidance have textual roots that originate in the making of the Convention: drafters could not agree on which model of democracy, if any, should underpin its democratic provisions (see here). But the issues noticed here do not require adopting an overarching model – rather, they need the Court to acknowledge a distinct and now clearly identifiable threat – an infrastructural one – and tailor its existing interpretive principles to it. Perhaps Călin Georgescu v. Romania can serve as catalyst for naming things anew. A closer yet safer attachment style could be within reach then.

[1] Alain Zysset, Calibrating the Response to Authoritarian Populism at the European Court of Human Rights (Cambridge University Press, forthcoming 2025). See also Alain Zysset, ‘Calibrating the Response to Populism at the European Court of Human Rights’, International Journal of Constitutional Law 20, no. 3 (2022): 976–1005.