Can a ‘Militant’ Court Be Trusted? Judicial Appointments and Romania’s Constitutional Court after the 2024 Electoral Crisis

A constitutional or supreme court that annuls a democratic election no longer merely reviews the exercise of public power as part of the system of checks and balances; it places itself, functionally, above the executive and legislative powers. ¹  In December 2024, the Constitutional Court of Romania (CCR) did exactly that: by Ruling no. 32/2024, it annulled the electoral process for the election of the President of Romania and ordered the entire process to be repeated. ²

The CCR justified the annulment by citing the need to protect electoral integrity against foreign interference, digital manipulation, the nontransparent use of online technologies, and undeclared campaign financing. ³  Yet the essential elements on which the ruling relied came from information supplied by national-security authorities, declassified shortly before the ruling and difficult for the public to verify. ⁴  This ambivalence explains why the dispute cannot be resolved by asking whether the annulment was legal, necessary, or proportionate. ⁵  A sensitive institutional question remains: in a democracy where constitutional judges are appointed entirely by political actors, can a court that assumes a militant role in defending the democratic order enjoy institutional legitimacy and public trust?

The answer proposed here is nuanced: political appointments are not, in themselves, incompatible with constitutional adjudication. However, when a court assumes an exceptional role in protecting democracy, the appointment process must establish clear criteria for competence, independence, and integrity, and ensure transparency, effective verification, and protection against political or partisan capture. ⁶

1. Militant rule of law and the price of constitutional defence

The idea that a democracy may defend itself against its own enemies is not new. In Karl Loewenstein’s classic formulation, militant democracy is the capacity of the democratic order to respond to anti-democratic forces that use democratic freedoms to destroy it from within. ⁷  Today, the problem also concerns how rule-of-law institutions respond to more diffuse forms of capture, manipulation, and democratic destabilization.

Ruling No. 32/2024 may be read in this light. The Court did not treat the annulment as a mere procedural sanction but as an intervention required to protect electoral integrity and, implicitly, the constitutional order. ⁸  Bogdan Iancu has placed the Romanian episode within the return of militant democracy, while emphasizing its paradox: constitutional defensive instruments may themselves become problematic when used under fragile procedural conditions, with summary reasoning and information difficult to verify publicly. ⁹

This is why militant democracy must be used with caution. In Sajó’s account of the militant rule of law, it does not mean that judges may violate the rule of law to save it. Rather, it means the firm application of existing rule-of-law principles, standards, and techniques against the abuse of legality. ¹⁰  The “militant” character of a court does not reduce its duties of legality, reasoning, and institutional self-restraint; it intensifies them.

The Venice Commission’s Urgent Report on the annulment of election results by constitutional courts follows the same logic. It does not exclude annulment but treats it as an exceptional measure subject to strict standards: clear jurisdiction, fair procedure, compliance with deadlines, proof of influence on the result, an adequate evidentiary standard, and sufficient reasoning. ¹¹  Annulment may be admissible only if it results from a reasoned, transparent, and verifiable legal analysis, not from a political intervention carried out through the judiciary.

This is the constitutional price of militant democratic defense: the greater the impact of a constitutional court’s intervention on the democratic process, the stronger the standards of reasoning and transparency must be. Formal authority is not enough. The Court must persuade. To persuade, it must be perceived as independent, competent, and protected from political capture.

2. The older legitimacy problem: appointment, constitutional identity and EU primacy

The 2024 electoral crisis did not create the CCR’s legitimacy problem. It made it impossible to ignore. A few years earlier, the same vulnerability had become apparent in Decision no. 390/2021, in which the Court relied on national constitutional identity amid the Section for the Investigation of Offences in the Judiciary (SIIJ) and the tension between CCR case law and EU law. ¹²

The relevant point is neither to revisit the debate over primacy nor to analyze the SIIJ file in detail. ¹³  What matters is that, in 2021, the CCR decided a highly sensitive institutional issue in a composition that included two judges appointed in 2019 at the proposal of the same political party. One had come directly from the leadership of the section whose legal regime was at issue; the other had been publicly contested because of his prior professional profile. Both appointments had been challenged before the CCR on grounds of competence, independence, and impartiality, and both challenges were dismissed. ¹⁴

This does not mean that Decision no. 390/2021 can be reduced to individual biographies. The problem is one of institutional appearance: when a constitutional court decides issues touching the judiciary, EU law, and its own sphere of authority, the appointment procedure becomes part of the legitimacy context for its rulings. Formal appointment under the Constitution is not enough; the procedure must give the public reasons to believe that judges are competent, independent, and impartial.

CJEU case law is important precisely because of this nuance. In Euro Box Promotion, the Court of Justice did not find that the CCR lacked independence. However, it held that the binding effects of constitutional court decisions cannot prevent national courts from ensuring the full application of EU law, even where judicial independence, anti-corruption obligations, or compliance with the rule of law is at stake. ¹⁵  In RS, the CJEU reaffirmed that neither national law nor constitutional case law can subject a national judge to disciplinary liability for giving priority to EU law. ¹⁶

The lesson is limited yet essential. The CCR differs from ordinary courts: it has a political origin in its composition, a special constitutional role, and a function as an arbiter among powers. Precisely for this reason, the more sensitive the issues it decides — constitutional identity, EU law, electoral integrity — the more important it is that appointment procedures not leave the impression that constitutional authority can be converted into political advantage. ¹⁷

3. The 2025 appointments: routine renewal or legitimacy test?

The 2025 renewal of one third of the Constitutional Court could no longer be treated as an institutional routine. The Constitution provides for a nine-year mandate and the renewal of one third of the Court’s judges every three years. ¹⁸  Following the annulment of the presidential elections, the 2025 rotation took place amid a tense political and institutional context. It was no longer merely a periodic renewal but a test of the CCR’s credibility.

Formally, each of the three political authorities involved — the Chamber of Deputies, the Senate, and the President — exercised its appointment power. ¹⁹  Yet this is precisely the limit of the Romanian model. The procedure is constitutional as a source of competence, but it remains unconvincing as a public mechanism for assessing candidates’ ethical and professional qualities. It shows who has the power to appoint, but says too little about the standard a candidate must meet.

The subsequent controversies confirmed this vulnerability. Two 2025 appointments, one made by the Senate and the other by the President, were challenged for failing to meet the constitutional requirement of at least 18 years of legal experience or higher legal education. ²⁰  The CCR dismissed the challenge to the Senate appointment, while the Bucharest Court of Appeal rejected applications to suspend the appointment acts and referred questions about seniority requirements to the CCR. ²¹  What matters is not the resolution of this technical dispute but the fact that it arose after the appointment, when the Court needed an additional demonstration of credibility.

Article 143 requires higher legal education, high professional competence, and relevant seniority. But these requirements need a procedure that translates them into verifiable criteria: what “high professional competence” means, how independence is assessed, which documents are examined, and how the choice of one candidate over others is justified. Yet parliamentary procedure remains dominated by political voting, and presidential appointment lacks a comparable public selection mechanism.

The 2025 appointments therefore mattered above all because the procedure failed to demonstrate competence, independence, and impartiality. There was no robust public test of these qualities. The Venice Commission’s Updated Rule of Law Checklist treats the composition and appointment of constitutional judges as part of the benchmark for constitutional review, precisely because appointment rules must guarantee independence, impartiality, competence, and institutional pluralism. ²²  Where a constitutional court may annul elections, block reforms, or define the limits between domestic and EU law, the appointment process itself becomes a constitutional guarantee.

4. What safeguards should do?

The problem is not a political appointment per se. A constitutional court is not an ordinary court, and its composition often reflects a compromise among legal expertise, democratic legitimacy, and institutional balance. Removing politics entirely would be unrealistic; European standards do not require it. The problem arises when political appointment becomes arbitrary: when criteria are vague, the hearing is formal, reasons are absent, and the parliamentary vote or presidential decree substitutes for public justification.

A political appointment can be compatible with constitutional adjudication if rules limit discretion and render the choice intelligible. Transparency and control guarantees are not procedural obstacles but mechanisms that ensure an inevitably political decision remains verifiable, reasoned, and compatible with the rule of law. Criteria for professional competence, independence, integrity, and legal experience must be public before selection, not reconstructed after controversy. The public must know who proposes the candidate, which documents support the proposal, and which professional trajectory justifies the appointment. The hearing must assess the candidate’s understanding of the Court’s role, the limits of its power, its relationship to EU law, and the risks of politicization.

One illustrative option would be to keep a political appointment but structure it through an expert screening stage, inspired by existing European judicial selection models. ²³  Before selection, each appointing authority should publish criteria for competence, integrity, and independence tailored to the Court’s constitutional function. An advisory committee of senior legal professionals, former constitutional or supreme court judges, and jurists of recognized standing could then issue a reasoned suitability report. ²⁴  The final appointment would remain political, but only among candidates found suitable, and the appointing authority would have to publish a reasoned justification. The aim would not be to depoliticize constitutional appointments entirely, but to make political responsibility visible, reasoned, and procedurally constrained.

An effective review is also necessary when eligibility is contested. If a constitutional condition, such as the minimum 18-year seniority requirement, can lead to litigation after appointment, the prior procedure has not fully performed its filtering function. Subsequent review must not be illusory, and access to it should not be blocked by an overly formalistic interpretation of the appointment act.

This logic aligns with European standards. The Venice Commission accepts a plurality of institutional models but insists on the procedure’s purpose: the court’s independence after appointment, the competence and experience of judges, and the institution’s balance and legitimacy. ²⁵  CJEU case law points in the same direction. In Repubblika, the Court of Justice accepted that political participation in judicial appointments is not, in itself, incompatible with EU law, but stressed that the procedure must prevent legitimate doubts about the independence of those appointed. ²⁶  In Euro Box and RS, the Court held that the authority of constitutional decisions cannot prevent the effective application of EU law or expose judges to disciplinary pressure when they apply EU law’s primacy. ²⁷

The stakes go beyond administrative correctness. These safeguards are the invisible infrastructure of public trust in the Court. Without them, every sensitive decision risks being read as reflecting the judges’ political origins rather than the force of constitutional argument. What is needed is not an entirely new institutional model but a more demanding, transparent, and publicly accountable procedure.

Conclusion – Romania as a cautionary case

The fundamental question is not whether a constitutional court may actively defend the democratic order. In exceptional circumstances, it may be called upon to do so. The question is whether such an intervention can generate public trust and legitimacy when the Court’s composition remains insufficiently transparent and insufficiently reasoned, and, at least apparently, too dependent on political will.

The Romanian case shows why these conditions are decisive. By Ruling no. 32/2024, the CCR did not merely review isolated electoral irregularities; it annulled the entire electoral process. Decision no. 390/2021 had already shown that the same Court can resolve sensitive conflicts involving constitutional identity, the judiciary, and EU law. The 2025 appointments also showed that the procedure for composing the Court remains too dependent on political will and too weak in public justification.

This does not mean political appointments must be eliminated. It means they must be governed by rules that make selection visible, reasoned, and controllable. Without such safeguards, every extraordinary intervention risks being read not by the strength of constitutional argument but by the judges’ political origins.

Romania is therefore a cautionary case, not an argument against constitutional courts or political appointments. Institutions that defend democracy must be built on credible procedures. Otherwise, a militant rule of law risks producing vulnerability rather than resilience. Constitutional defense cannot be stronger than the trust on which it rests.

“Criteria must be public before selection” and “the hearing must assess the candidate’s understanding of the Court’s role” are correct but already implicit in the Venice Commission documents cited. A brief indication of what institutional mechanism the author has in mind, even as one illustrative option (a parliamentary screening committee with binding competence criteria, a published reasoned justification by the appointing body, or similar), would give the section meaningful added value beyond restating existing standards.

1. Venice Commission, The Updated Rule of Law Checklist, CDL-AD(2025)002, 16 December 2025, paras. 7, 11–12, sections II.D and II.G.
2. Constitutional Court of Romania, Ruling no. 32 of 6 December 2024, Official Gazette of Romania, Part I, no. 1231 of 6 December 2024.
3. Venice Commission, Urgent Report on the Cancellation of Election Results by Constitutional Courts, CDL-AD(2025)003, 18 March 2025, paras. 5, 7–9.
4. Venice Commission, Urgent Report on the Cancellation of Election Results by Constitutional Courts, CDL-AD(2025)003, paras. 9, 59.
5. For the debate on the legality of the annulment and the framing of the Romanian episode through militant democracy and rule-of-law paradoxes, see Bogdan Iancu, “Militant Democracy and Rule of Law in Three Paradoxes: The Annulment of the Romanian Presidential Elections”, Hague Journal on the Rule of Law, 2025, https://doi.org/10.1007/s40803-025-00245-8 .
6. Venice Commission, The Updated Rule of Law Checklist, CDL-AD(2025)002, section II.G.2; Venice Commission, The Composition of Constitutional Courts, CDL-STD(1997)020, 1997, section 1.2.
7. Karl Loewenstein, “Militant Democracy and Fundamental Rights, I”, American Political Science Review, vol. 31, no. 3, 1937, pp. 417–432; Karl Loewenstein, “Militant Democracy and Fundamental Rights, II”, American Political Science Review, vol. 31, no. 4, 1937, pp. 638–658.
8. Constitutional Court of Romania, Ruling no. 32/2024, 6 December 2024, Official Gazette of Romania, Part I, no. 1231 of 6 December 2024.
9. Bogdan Iancu, “Militant Democracy and Rule of Law in Three Paradoxes: The Annulment of the Romanian Presidential Elections”, Hague Journal on the Rule of Law, 2025, https://doi.org/10.1007/s40803-025-00245-8 ; see also Bogdan Iancu, “Romanian Militant Democracy and the Time Machine”, Verfassungsblog, 13 March 2025.
10. András Sajó, “Militant Rule of Law and Not-so-Bad Law”, Hague Journal on the Rule of Law, vol. 16, 2024, pp. 525–549, https://doi.org/10.1007/s40803-024-00221-8 .
11. Venice Commission, Urgent Report on the Cancellation of Election Results by Constitutional Courts, CDL-AD(2025)003, paras. 31–39, 46–54, 55–66 and 75–79.
12. Constitutional Court of Romania, Decision no. 390 of 8 June 2021, Official Gazette of Romania, Part I, no. 612 of 22 June 2021. On the EU-law background of the SIIJ litigation, see CJEU, Asociația “Forumul Judecătorilor din România” and Others, Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, judgment of 18 May 2021, EU:C:2021:393.
13. For earlier analyses of the Romanian Constitutional Court’s case law in the context of EU integration, the primacy of EU law and the rule-of-law debate in Romania, see Horatius Dumbravă, “The rule of law and the EU’s response mechanisms in case of violation: a Romanian Case Study”, ERA Forum 22(3), 2021, pp. 437–452, https://doi.org/10.1007/s12027-021-00682-6 ; Horatius Dumbravă, “The effects of Constitutional Court Judgments in the context of EU integration: the case of Romania as an EU Member State”, ERA Forum 25, 2024, pp. 61–78, https://doi.org/10.1007/s12027-024-00794-9.
14. Constitutional Court of Romania, Decision no. 395 of 5 June 2019 concerning the constitutional challenge against Chamber of Deputies Decision no. 17/2019 appointing a judge to the Constitutional Court, Official Gazette of Romania, Part I, no. 502 of 21 June 2019; Constitutional Court of Romania, Decision no. 396 of 5 June 2019 concerning the constitutional challenge against the Senate decision appointing Cristian Deliorga as judge of the Constitutional Court, Official Gazette of Romania, Part I, no. 502 of 21 June 2019. Gheorghe Stan and Cristian Deliorga were appointed in 2019 on proposals supported by the Social Democratic Party, by the Chamber of Deputies and the Senate respectively.
15. CJEU, Euro Box Promotion and Others, Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, judgment of 21 December 2021, EU:C:2021:1034.
16. CJEU, RS, Case C-430/21, judgment of 22 February 2022, EU:C:2022:99.
17. On constitutional courts as special actors within European constitutional democracy, see Jan Komárek, “National constitutional courts in the European constitutional democracy”, International Journal of Constitutional Law 12, no. 3, 2014, pp. 525–544, https://doi.org/10.1093/icon/mou048. On the composition and appointment of constitutional courts, see Venice Commission, The Updated Rule of Law Checklist, CDL-AD(2025)002, section II.G.2; Venice Commission, The Composition of Constitutional Courts, CDL-STD(1997)020, 1997, section 1.2.
18. Constitution of Romania, art. 142(2) and art. 142(5). See also Law no. 47/1992 on the organisation and functioning of the Constitutional Court, art. 5.
19. Constitutional Court of Romania, Press Release, 13 July 2025. The CCR announcement refers to Chamber of Deputies Decision no. 42 of 24 June 2025, Senate Decision no. 64 of 24 June 2025 and Presidential Decree no. 774 of 8 July 2025.
20. Constitution of Romania, art. 143.
21. Constitutional Court of Romania, Decision no. 344 of 1 July 2025 concerning the constitutional challenge against Senate Decision no. 64/2025 appointing a judge to the Constitutional Court. For the subsequent proceedings before the Bucharest Court of Appeal concerning the suspension of the appointments of Mihai Busuioc and Dacian-Cosmin Dragoș, see Agerpres, “CAB respinge cererea de suspendare din funcție a judecătorilor CCR Mihai Busuioc și Dacian Dragoș”, 11 February 2026; Radio Free Europe Romania, “Suspendarea judecătorilor CCR Dacian Dragoș și Mihai Busuioc, respinsă pentru a doua oară de Curtea de Apel București”, 11 February 2026.
22. Venice Commission, The Updated Rule of Law Checklist, CDL-AD(2025)002, 16 December 2025, section II.G.2, “Composition and appointment”. See also Venice Commission, The Composition of Constitutional Courts, CDL-STD(1997)020, 1997, section 1.2.
23. See, by analogy, Article 21 of the European Convention on Human Rights and Committee of Ministers Resolution CM/Res(2010)26 on the establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights, as amended by Resolution CM/Res(2014)44; see also Article 255 TFEU and Council Decision 2010/124/EU of 25 February 2010 relating to the operating rules of the panel provided for in Article 255 TFEU.
24. For the CJEU model, see the activity reports of the panel provided for in Article 255 TFEU, which assess candidates by reference to professional ability, experience, independence and impartiality, knowledge of EU law and the ability to understand the function of the Court within the EU legal order. See, for example, Seventh Activity Report of the Panel provided for by Article 255 of the Treaty on the Functioning of the European Union, pp. 17–19.
25. Venice Commission, The Composition of Constitutional Courts, CDL-STD(1997)020, 1997, section 1.2. The report identifies the main aims of appointment procedures as ensuring the independence of the constitutional court from political influences after appointment, recruiting competent and experienced judges, and securing the balance and legitimacy of the court.
26. CJEU, Repubblika v Il-Prim Ministru, Case C-896/19, judgment of 20 April 2021, EU:C:2021:311, especially paras. 53–57.
27. CJEU, Euro Box Promotion and Others, Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, judgment of 21 December 2021, EU:C:2021:1034; CJEU, RS, Case C-430/21, judgment of 22 February 2022, EU:C:2022:99.