France and Romania: Should far-right candidates be banned from running for the presidency?

Excluding candidates from standing in elections may be a legally sound option to protect democracy from anti-democratic forces. But it is an insufficient solution on its own.

Romania and France have recently banned candidates from running in forthcoming elections, causing uproar domestically and internationally. While the circumstances and the reasons behind the bans are very different, the barring of candidates raises similar questions in both countries: are bans justified and, even if they are, do they harm democracy?

When are election bans justified?
Banning political parties or politicians on the basis of their politics is seen as a measure of last resort in democracies. Exclusions are a response to what is called the ‘paradox of democracy’ – the risk that anti-democratic actors may use democratic institutions and rights, including freedom of speech and assembly, to abolish democracy. As a response, many countries have enshrined in their legal systems the idea of a ‘militant democracy’, which defends itself against political actors undermining its foundations. Germany, for example, defines its political system as a militant democracy, allowing the courts to ban political parties.

Banning political parties or politicians on the basis of their politics is seen as a measure of last resort in democracies.

The European Court of Human Rights has established some parameters around party bans, arguing that they should be imposed by an independent judicial body and that the banned party should represent an imminent threat to the democratic order. There should be sufficient evidence that the party advocates violence or unconstitutional actions to overthrow democracy, or that it poses a real threat to citizens’ fundamental rights and freedoms. Certain countries additionally consider undermining the territorial integrity of the state as potential grounds for a ban. A political party’s or politician’s freedom of speech can also be restricted (by banning hate speech, for example). Bans on parties are relatively rare – according to a 2017 study, a total of 52 bans were imposed between 1945 and 2015 in Europe (with 20 of those happening in Turkey and Ukraine).

Separately, politicians can be disqualified from running for office if they violate electoral rules or commit crimes – whether or not the wrongdoing is related to their political beliefs. Many countries impose automatic disqualification on politicians convicted of crimes. But as with any penalty, disqualification still needs to be proportionate and clearly defined in law. Bans on holding public office have been imposed in response to direct threats to democracy, such as taking part in an attempted coup, or lesser crimes such as corruption and fraud.

Unlike party bans, disqualification is common, both in and outside Europe. In 2013, for example, Italy banned former Prime Minister Silvio Berlusconi from holding public office for six years due to tax fraud. In Brazil, the courts declared two former presidents ineligible to run: Luiz Inácio Lula da Silva in 2018, following a corruption conviction (which was overturned in 2021); and Jair Bolsonaro in 2023 for spreading disinformation about the country’s voting system. Bolsonaro was also barred from running for office for eight years.

What happened in France?
At the end of March, Marine Le Pen, the leader of the far-right Rassemblement National (RN), was found guilty of misappropriating more than €4 million in EU funds. The court argued that, during a span of 12 years, Le Pen and 24 other associates used the money to support the national arm of the party instead of its EU representatives. Le Pen herself received the harshest sentence, including four years in prison (two of which are suspended and two to be served under house arrest) and a five-year ban from standing for office, effective immediately.

Le Pen and several French as well as foreign politicians denounced the sentence, arguing that it was politically motivated. They were wrong: France’s justice system is independent and there were no indications of improper influence in the case. Le Pen was disqualified for corruption, and not on the basis of her politics. The ruling was also in line with the recent tightening of France’s anti-corruption laws, which Le Pen herself supported. In fact, in 2013 she called for a lifetime ban from public office for politicians convicted of fraud or embezzlement. In 2016, France adopted the so-called Sapin II law, which reduced the courts’ discretion in deciding whether to ban politicians guilty of misusing public funds. The Paris court did not rely on Sapin II, since Le Pen and the other defendants committed their crimes between 2004 and 2016, before its adoption, but it referenced the law to support its arguments.

This is also not the first time a French politician has been banned from running for office. Alain Juppé, a former prime minister, was convicted of corruption and banned from public office for ten years in 2004; former Budget Minister Jérôme Cahuzac was sentenced for tax fraud and banned for five years in 2018; former Prime Minister François Fillon was sentenced to four years’ imprisonment and banned from holding office for ten years in 2020 for misusing public funds; and the trial of former President Nicolas Sarkozy over illegal campaign finance is currently ongoing, with the prosecution requesting a five-year ban from office.

What was unexpected in Le Pen’s case was the immediate effect of the ban, which, for now, makes her ineligible to run in France’s 2027 presidential election. Such immediate application is rare in France; it only happened in 4 per cent of cases in 2023. The court highlighted that if the ban did not take effect immediately it could be useless since Le Pen could run, win the election and gain immunity before the judgment became final. In effect, the judges sent a message that politicians are not above the law. At the same time, some legal experts argue that the judgment also relied on the concept of militant democracy. The court justified the immediate effect on the basis of the need to protect France’s ‘democratic public order’, implying that to allow a convicted politician to run and win office would be contrary to the integrity of democratic institutions.

Le Pen can still appeal. If she succeeds, or if the appeals court decides to reduce the ban, she could still run in 2027. The appeals court announced that it will decide by next summer, making it theoretically possible for Le Pen to stand in 2027. But the chances of success for her appeal are slim: the verdict was well-founded. If she cannot run, the party may need to turn to Jordan Bardella, its leader, who is popular but considered by some to be too young and inexperienced to take up Le Pen’s mantle.

What happened in Romania?
The Romanian case is a curious case of militant democracy in action. Romanian law allows for the banning of political parties if, for example, they advocate acts of aggression, national or racial hatred, territorial separation or activities undermining public order. No such bans have taken place so far – but the Constitutional Court and the electoral commission have used this legal basis to disqualify two candidates from running in the most recent presidential elections.

The first candidate, Diana Șoșoacă, the head of the far-right SOS party, was banned from running in October 2024 due to her anti-democratic views and behaviour. Șoșoacă had earlier expressed support for the Iron Guard (Romania’s interwar fascist movement), speculated about annexing parts of Ukraine and repeated antisemitic tirades. She had been polling fourth, with support in double digits before the ban. The Constitutional Court argued that Șoșoacă would be unable to defend democracy and represent the principles laid down in Romania’s constitution, including membership in the EU and NATO. Legal commentators criticised the ban because it broke with the precedent that the Constitutional Court did not decide on the merits of candidates participating in elections, and because the constitution provides for banning parties, but not candidates. Additionally, the opposition accused the court –  seen as a politicised institution, with appointments made by the ruling PSD forming a majority of the judges – of meddling to give a leg up to the PSD in the race. Experts and politicians alike argued that her fate should have been decided by the voters.

But the story did not end there. In the first round of the election, held in November 2024, another obscure far-right candidate, Călin Georgescu, shocked everyone by finishing first. The Constitutional Court ordered a recount and then cancelled the whole election. The court based its decision on declassified intelligence that showed a suspiciously sharp rise in Georgescu’s visibility on TikTok and other social media, probably due to co-ordinated amplification of his posts by fake accounts (potentially linked to Russia). The court argued that this demonstrated voter manipulation and the distortion of equal opportunities. While it was clear that he had received support, Georgescu’s failure to declare any funding for his election campaign also constituted a violation of electoral law. Georgescu’s views showed strong similarities to those of Șoșoacă, including a fervent belief in conspiracy theories, a mystic tinge of religiosity (he once said “the only science is Jesus Christ”), and strong opposition to Western alliances and to supporting Ukraine.

The similarity between Georgescu and Șoșoacă played a role in the disqualification of Georgescu from the rerun, scheduled to take place in May this year. In early March, the electoral commission rejected Georgescu’s request for registration, citing the cancellation of last year’s elections and the earlier Șoșoacă ruling, which in effect, established defending democracy as an eligibility requirement. Georgescu appealed against the decision but the Constitutional Court rejected his appeal. He is currently facing criminal proceedings on six counts, including incitement to actions against the constitutional order, disinformation and involvement in an organisation “with a fascist, racist or xenophobic character”. An associate of Georgescu, a former mercenary serving in the Democratic Republic of Congo, was arrested for stashing away large amounts of cash and weapons, including grenade launchers.

This is not the first time that an election has been annulled in Europe. In 2016, because of problems with postal voting, the courts in Austria annulled the presidential runoff, which the far-right FPÖ candidate had lost by a small margin, and ordered a rerun. But this is the first time that an election has been cancelled over the non-transparent use of social media, with the goal of defending democracy. For now, the outcome is unclear – Georgescu’s voters seem to be flocking to another far-right candidate, the head of the AUR party, George Simion, who is currently leading the polls but could lose in the second round of the vote.

What does this mean for democracy?
Electoral bans carry their own risks. Even if they are in line with the letter and spirit of the law, bans could create a backlash and weaken the very system they are intended to protect.

Even if they are in line with the letter and spirit of the law, bans could create a backlash and weaken the very system they are intended to protect.

Critics of bans argue that in the case of extremist, anti-democratic candidates, a ban can strengthen the ideology that the party or candidate represents. They claim that the negative effects of a ban could therefore outweigh any potential benefits that it may bring.

Critics also argue that bans allow extremist candidates to portray themselves as ‘victims’. But anti-system candidates do not need an excuse to attack the system – they criticise the judiciary or the ‘elites’ anyway. Such criticism should not stop democracies from applying the law consistently.

And finally, critics say that extremist or populist leaders should be defeated at the ballot box or allowed to fail while in government. But this argument underestimates the damage that they can do to democracy once elected.

It is, at the same time, possible for bans to undermine trust in the legal system, especially if it was low to begin with. When politicians outsource the defence of democracy to the courts, judges become part of a politicised debate and may no longer be seen as impartial arbiters.

In the cases of Romania and France, it is unclear at this point whether the decisions are creating a backlash. According to 54 per cent of Romanians, banning Georgescu was the correct decision – although 47 per cent found the explanations presented by the authorities insufficient. The increased support for Simion also shows that voters have found another outlet for the ideas that Georgescu (and Șoșoacă) represented. In France, 65 per cent found the court’s ruling unsurprising and 54 per cent said that it demonstrates that democracy “functions well” – but 43 per cent argued that it shows the opposite. Le Pen’s disqualification has not yet led to a fundamental change in perceptions: there has been no significant shift in support for the party, Le Pen or Bardella since it was announced.

At the same time, low trust in both the judiciary and politicians is a problem for Romania and France. In France, 45 per cent trust the judiciary, while only 26 per cent express trust in the president and 14 per cent in political parties. The numbers in Romania are similar, with 49 per cent trusting the justice system and 24 per cent trusting political parties. Given the controversy around the rulings, they will probably negatively affect trust in both sets of institutions.

Conclusion
Excluding political actors can be controversial in democracies. It could be a step to improve democracy – by ridding the public sphere of convicted politicians – or a measure of last resort to defend it. The bans in Romania were an example of a militant democracy trying to defend itself, while Le Pen’s disqualification was aimed more at ensuring that politicians do not enjoy impunity. Importantly, both cases had a legal basis and were adjudicated by an independent, even if mistrusted, judiciary. 

The bans in Romania were an example of a militant democracy trying to defend itself, while Le Pen’s disqualification was aimed more at ensuring that politicians do not enjoy impunity.

This lack of trust may create problems in the future. Both elections will take place in a highly polarised atmosphere and against the backdrop of foreign interference. Politicians and analysts argue that Russia is waging a ‘hybrid war’ – which includes employing disinformation and political manipulation – against the EU. The question is then what standards should apply in such cases. The only comparison is to Ukraine, where the authorities have banned several parties since Russia’s invasion of Crimea in 2014, and especially since the start of Moscow’s full-scale war in 2022. But different legal standards apply in a country at war.

The forthcoming European Democracy Shield, a European Commission initiative focusing on combatting foreign interference and other risks to democracy, should grapple with the question of militant democracy and help countries establish standards for responding to such threats. It should also concentrate on building resilience. The increasing vote share of the far right in Romania, France and the rest of the EU highlights the importance of fostering trust in institutions.

Ultimately, whether and to what extent bans help safeguard democracy is up for debate. When it comes to tackling the danger that extremist and anti-democratic actors represent, political exclusion seems at best a temporary fix. For now, we can look forward to a preliminary answer on their effectiveness during the Romanian presidential rerun.

Zselyke Csaky is a senior research fellow at the Centre for European Reform.