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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
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- Art. 43a FC
- Art. 55 FC
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- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
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- Art. 701 CO
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- Art. 734f CO
- Art. 785 CO
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- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
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- Art. 10 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
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- Art. 19 FADP
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- Art. 22 FADP
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- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
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- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
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- Art. 44 FADP
- Art. 44a FADP
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- Art. 47a FADP
- Art. 48 FADP
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- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
I. History and Systematics
A. Preliminary remarks on Title 2 of the Act
1 Art. 10 is the first of seven provisions making up Title II of the Political Rights Act, which, as its title indicates, deals with "Votations" ("Abstimmungen", "Votazioni").
2 In principle, Title II and its component provisions apply to "votes", i.e. cases in which the federal electorate, in its various forms, is called to the ballot box to take a material and concrete decision on a given subject, by voting "yes" or "no". This is the case in several hypotheses: 1°) all cases of mandatory referendum by a double majority of the people and the cantons, i.e. for all (partial or total) revisions of the Constitution, for acts approving certain international treaties and for urgent federal laws passed for more than one year and lacking a constitutional basis; 2°) all cases of compulsory referendum of the people alone (various procedural hypotheses concerning revision of the Constitution); or all cases of optional referendum, by a majority of the people alone, on federal laws, urgent federal laws in conformity with the Constitution whose period of validity exceeds one year, federal decrees (not simple), as well as acts of approval of certain international treaties.
3 These provisions - articles 10 to 15 - do not therefore apply, in principle, to the exercise of other powers of the federal electorate, such as the election of the National Council, the launching of a referendum or the launching of a popular initiative, in particular, an exercise which is governed by other titles of the law. Some of the provisions of Title 2 have their counterparts elsewhere in the law, for example in Title 3, on the election of the National Council.
B. Systematic and historical aspects of art. 10
4 As its title indicates ("Date and execution"), art. 10 deals with the date and organization of votes. In fact, the title of the provision is not the most precise and clear, as can be seen from its three language versions, which are quite different ("Anordnung" in German, i.e. rather "fixation" of the [date of] voting, and "Organizzazione" in Italian). From a historical point of view, the provision has undergone a fairly substantial evolution and modification, which does not, however, explain this diversity of titles, and their relative imprecision, since they have not changed.
5 Art. 10 already existed in the original 1976 version of the law, with the same title in French ("Date et exécution"), as in German and Italian, but with a simpler content - and more in symbiosis with the title -, divided into two paragraphs. The first simply stated: "The Federal Council shall set the date of the vote", while the second - identical in every respect to the current paragraph 2 - referred to execution by the cantons: "Each canton shall ensure the execution of the vote within its territory and shall adopt the necessary measures".
6 This provision was amended by the revision of the Political Rights Act of June 21, 2002, which came into force on January 1, 2003. 1 and added para. 1bis, thus constituting the current text of the provision. The June 2002 revision, in which Parliament adopted the Federal Council's proposal unchanged and without discussion, was, as the government message emphasized, part of a "growing desire to establish a medium- and long-term timetable - easily calculable and perfectly transparent - for popular votes, a timetable that would ensure a certain continuity in the rhythm of voting and avoid jolts as far as possible". To this end, according to the Government, it was necessary to establish "in law the principles authorizing the Federal Council", on the one hand, "to lay down the rules for defining the Sundays reserved for federal referenda (para. 1)" and, on the other hand, "to determine and make public, from now on, at least four months before the day of a referendum, the matters, with the exception of urgent federal legislation, which will be put to the vote on that day (para. 1bis)".
II. Meaning and significance of the provision
A. General
7 As we have just seen, the object and purpose of the provision is both to establish, as far as possible, a coherent, appropriate and transparent timetable for federal votes, taking into account the many parameters that must be taken into consideration (vacations, religious calendar, etc.), and to ensure that the various parties concerned have sufficient time to prepare the campaigns leading up to the votes. To this end, the provision delegates to the Federal Council the task of laying down, in a general and abstract manner, "the rules for determining voting days", requiring it to respect a certain number of parameters to be taken into consideration; on the other hand, it requires it to determine the subject of the vote at least four months in advance.
8 In the Swiss political system, this provision has a certain importance and a rather fundamental character insofar as Switzerland is characterized, from a comparative point of view, by a very high degree of direct democracy - probably the highest in the world - i.e. as a political system in which citizens are very often called upon to express their views on concrete issues by means of popular votes. It is generally accepted - albeit without empirical verification, but as a fairly reliable order of magnitude - that more than half of all popular votes held worldwide each year take place in Switzerland. This statistical statement certainly takes into account all popular votes held in the country, i.e. not only federal votes, but also communal and cantonal votes. The latter must therefore be deducted, as they are significantly more numerous than federal referenda. Nevertheless, from a comparative perspective, federal referenda alone account for a considerable number of popular votes each year.
9 Given the importance of political rights in the Swiss constitutional system, it is all the more essential that these votes be governed by clear and precise legal rules, to ensure that they take place in a regular manner, thereby guaranteeing the effective realization of these rights.
B. Cantonal law
10 As already mentioned, popular votes are even more numerous at cantonal and communal level. Most cantonal laws on political rights contain provisions more or less similar to art. 10 of the LDP, giving the cantonal executive the power to set and announce ballot dates, or to convene the electorate in advance and set ballot dates. Generally speaking, these provisions stipulate that, as far as possible, the dates should coincide with those of federal votes, the idea obviously being to avoid multiplying voting days and to concentrate federal, cantonal and communal votes on the same dates as far as possible.
III. Comments
A. Paragraph 1: the voting calendar
1. The text and purpose of paragraph 1
11 As we have seen, para. 1, as we have seen, gives the Federal Council the power - and the mandate - to lay down "the rules for determining voting days", i.e. to establish, in the form of a general and abstract regulation, the calendar of voting days for federal votes. The provision specifies that the Government must, "[i]n doing so", take into account "the needs of voters, Parliament, cantons, political parties and organizations responsible for delivering voting material" and avoid "collisions that may result from differences between the calendar year and the religious year". The reasons for this provision, since its revision in 2002, are explained in the Federal Council's message relating to this revision. In justifying the proposed new para. 1, that "it is not easy to establish a system that allows the first two voting dates of each calendar year to be fixed", for a number of reasons, not least calendar-related: firstly, because "voting cannot take place in January and early February, as the Post Office cannot guarantee that voting material will be distributed in time for the Christmas and New Year holidays, nor can it take place in July, when a large proportion of the population is on vacation". Furthermore, the message added that "a minimum of eight weeks should separate two federal votes (there's not enough room to store voting material, and it must not be confused)". Another reason was that "from Ash Wednesday to Pentecost and Corpus Christi, the civil and religious calendars obey laws that are not always in harmony with each other".
12 A number of parameters therefore need to be taken into account, including the needs of voters, vacation periods and festivities, as well as public holidays, some of which may vary from year to year according to the religious calendar, and some of which may also vary between cantons according to different religious calendars. But we must also consider the needs of the authorities and political parties, such as the practical need to prepare and distribute voting material, or to enable political parties and other interested organizations to prepare and conduct their voting campaigns, taking into account other deadlines on the political calendar, such as elections or parliamentary sessions, for example.
2. Putting it into practice: Article 2a of the Ordinance on Political Rights
13 The Federal Council fulfilled its mandate under para. 1 by adopting, in a revision dated June 14 2002, a new Article 2a of the Ordinance on Political Rights (ODP) of May 24 1978, which, as its title indicates, determines the "Dates of federal popular votes". Paragraph 1 of this provision sets aside four Sundays per year, and stipulates that "the following Sundays shall be reserved for federal votes": "the second Sunday in February, in years in which Easter Sunday falls after April 10, and the fourth Sunday before Easter in other years" (let. a); "the third Sunday in May, in years when Pentecost Sunday falls after May 28, and the third Sunday after Pentecost in other years" (let. b); "the Sunday following the Federal Fast" (let. c), and "the last Sunday in November" (let. d). Para. 2 specifies that "[f]or overriding reasons", and "after consulting the cantons", the Federal Chancellery may propose to the Federal Council "to move a particular date, or to set additional dates", and para. 3 states that "there shall be no federal referendum in the month of September of the year of the complete renewal of the National Council".
14 The rule is therefore that voting day is always a Sunday, which does not mean that voting is only possible on Sundays. Early voting is in fact permitted, and even required, in that the cantons are obliged to make "early voting possible for at least two of the four days preceding voting day" (art. 7 para. 1 LDP).
15 To ensure the predictability and transparency of the calendar, Art. 2a ODP, para. 4, also stipulates that the Federal Chancellery "shall publish the dates reserved for federal popular votes in the following year, no later than June of each year".
3. Practical experience
16 In actual fact, practice today goes much further than the Ordinance requires, since the Federal Chancellery's website lists all the dates reserved for federal referenda, not just for the following year, but for the next 20 years. What's more, the ch.ch website, a joint offering from the Confederation, cantons and communes, also provides a "consolidated" calendar of upcoming cantonal and communal votes.
17 The fact that a date has been reserved does not necessarily mean that there will be one or more federal votes on that day. In fact, even if this is not very frequent - it depends on how busy the political calendar is, and on the number of popular initiatives and other items being processed and, above all, ready to be put to the vote - it can happen that a reserved date or, more rarely, several successive reserved dates are not used. Thus, for example, in the recent past, there was no popular vote on November 27, 2022, a date that had been reserved, because "[n]o act of the Confederation [was] ready to be put to the vote on that day"; similarly, and for the same reason, there was no federal vote on March 12, 2023, the next date that had been reserved, meaning that two successive dates were not used, which is rather exceptional and apparently had not happened for almost 25 years.
18 In practice, over the last forty years or so, three or often four voting days have generally been used, except in federal election years, when the third Sunday reserved is used - as stipulated in art. 2a para. 3 ODP - for the election of the National Council, while the fourth is used in principle for any run-off elections to the Council of States in the cantons, so that in those years there are generally only two federal voting Sundays.
19 It is up to the Federal Council - acting on a proposal from the Federal Chancellery - to decide whether or not to hold a vote on the reserved date, and in principle to do so at least four months before that date. This deadline is implicit in para. 1bis, since it is within this period of at least four months that the Federal Council is required to determine the items to be put to the vote, as we shall see below.
20 We would also like to draw your attention to a particular and rather unusual case of a reserved date not being used, where the subjects have already been determined: that of the last-minute abandonment of a vote that had already been planned and set, as happened, due to the Covid-19 pandemic, for the vote on May 17, 2020, which was to have dealt with three subjects. At its meeting on March 18, 2020, the Federal Council decided not to hold this vote. In particular, it considered that "[t]he proper conduct of a popular vote requires not only the organization of the vote in the strict sense (logistics, exercise of the right to vote, ascertainment of the result, etc.), but also implies that citizens can freely form their opinion (art. 34 of the Constitution). Citizens must be able to form an opinion and make informed choices. This means, in particular, that a campaign must take place prior to the vote. Alongside the Federal Council, which has a statutory duty to inform citizens, civil society players (parties, committees, associations, NGOs, etc.) and the media play a decisive role. Because of the COVID-19 epidemic, information sessions and public demonstrations are prohibited, and parties and other political players are not allowed to meet to set their agenda". The three items scheduled for May 17, 2020 were finally put to the vote, along with two others, in the September 27, 2020 ballot.
21 Following this rather peculiar episode, the legal regularity of which was questionable or, to say the least, debated, and in response to a motion adopted by the Chambers, in February 2023 the Federal Council expressed its wish to draw up a legal basis that would explicitly allow it, in the event of a crisis, to move a popular vote or abandon the holding of a vote that had already been set.
B. Paragraph 1bis: determination of ballot items
1. The text of paragraph 1bis
22 It is one thing to fix the calendar of dates set aside for votes, and quite another to determine the objects actually put to the vote on each of these dates. Para. 1bis, newly introduced by the June 2002 revision and in force since January 1, 2003, gives the Federal Council the competence - the mandate - to determine the (various) items to be put to the vote, and to do so "at least four months before the day of the vote", a period which may however be shortened for federal laws declared urgent. This competence means that the Federal Council can decide - as we have already seen - whether or not to order a vote on a date reserved for this purpose, at least four months before the date in question, but also, and within the same timeframe, to decide - if there is to be a vote - on the number and identity of the items to be put to the vote on that date, as well as their combination or association.
23 As explained in the 2001 message relating to the revision that introduced this provision, para. 1bis is intended to "ensure that all parties have sufficient time to prepare for the campaign leading up to the vote".
24 The law does not, however, lay down any criteria for determining these subjects, and the Federal Council therefore has a certain amount of freedom. Its choice is, however, dictated or at least framed by a number of parameters and factors that derive in part from practical contingencies, or certain principles, but sometimes also from considerations of pure political "tactics". As a general rule, legal doctrine accepts that the Federal Council is not (entirely) free, and that it exercises an "executive competence" (Vollzugskompetenz) in fixing the timing of the vote: it has no choice, and must therefore fix the vote within an appropriate timeframe, once an object is ready to be put to the popular vote; in any case, it cannot delay - or drag out - a vote for political reasons.
2. Parameters and principles determining the Federal Council's choice
25 The Federal Council's choice is dictated, first and foremost, by a certain number of parameters or factors of a practical nature, the principle being, according to the Federal Chancellery, that "[n]ormally, items that are ready for a vote are put to the vote as quickly as possible". The number of items ready to be put to the vote is obviously a determining factor, but the number of items still being processed but which will soon be ready can also play a role, as can, in some cases, the number of items from the same department.
26 Other factors are also taken into account, such as calendar or deadline requirements, such as the planned date of entry into force of certain acts, or the legal processing deadlines for popular initiatives, for example. For example, under the terms of the new art. 75a LDP, introduced by a revision of September 25, 2009, and in force since February 1, 2010, the Federal Council has in principle "a period of ten months from the final vote of the Federal Assembly, but no more than ten months after the expiry of the legal periods reserved for Parliament to examine the popular initiative" to submit an initiative to a popular vote. These deadlines for the processing of popular initiatives by the Federal Assembly and the Federal Council are laid down in the Parliament Act.
27 Despite these various practical parameters, or those resulting from legal rules that do not depend on the Federal Council, the latter retains a certain amount of leeway and freedom in the choice - and combination, or association - of subjects to be put to the vote on a given date. Its choice may therefore sometimes be the result of considerations that come under a form of "political tactics", and which may occasionally earn it some criticism.
28 Thus, for example, the simultaneous submission to the vote, in June 2021, of the new CO2 law, which was subject to a referendum, with two popular initiatives in favor of banning pesticides, drew criticism from those in favor of legislative reform, all the more so as subsequent analyses showed, a posteriori, "that these initiatives targeting the agricultural world had strongly mobilized a rural and conservative stratum of the population, which rejected the CO2 law at the same time".
29 The doctrine also sometimes cites the more distant example of the vote of July 6, 1947, when the Federal Council chose to put the new economic articles of the Constitution to the vote on the same day as the referendum on the AVS, with the aim of taking advantage of the popular momentum in favor of the latter to push through the promotion of agriculture.
30 Generally speaking, since 1970, ballots have most often been held on several items submitted simultaneously to the vote: three, four or five, sometimes more, up to six, rarely more. Cases in which a single item is put to the vote - which represented the vast majority before 1970 - have become rarer and are sometimes reserved for particularly urgent or important items.
3. Reducing the four-month deadline for urgent legislation
31 Para. 1bis provides, by way of exception, that the deadline of at least four months before the day of the vote set by the Federal Council for determining the items to be put to the vote "may be shortened" for urgent legislation. The 2001 message relating to the revision that introduced para. 1bis, justifies this exception as follows: "any urgent federal law [...] must be brought before the people within one year if, after it has come into force, a request for a referendum is lodged and is successful within 100 days (art. 59 LDP); the said law ceases to be valid one year after its adoption by the Chambers and cannot be renewed (art. 165, al. 2 and 4, Cst.) if the people have not accepted it, refused it or if it has not been submitted to them", so that "it must be avoided that, because it has not been submitted to them, it is reduced to nothing by the provision on the announcement of the objects put to the vote, which would be the case since the next ballot would arrive too late. The result would be a violation of direct democracy".
32 In other words, given the strict conditions of validity to which it is subject in the year following its entry into force, and the tight deadlines within which these conditions of validity must be verified, an urgent law must be able to be put to the vote, if this is requested, without a minimum period of four months having to be respected with regard to the announcement of the subject of the vote. Although the text of para. 1bis refers to urgent legislation in general terms, the exception is particularly useful, if not necessary, for urgent legislation in conformity with the Constitution, which is subject to an optional referendum, and for which deadlines are therefore particularly tight. This raises the question of whether the rule also applies to urgent laws without a constitutional basis, subject to mandatory referendum, for which a reduction in the four-month deadline does not appear objectively necessary. In such cases, the Federal Council should endeavour to respect the normal four-month deadline.
33 In any case, in recent practice, the Government has sought to respect the four-month deadline even in the case of urgent legislation subject to optional referendum, as demonstrated by the three referendums concerning the COVID-19 law. This law, which was passed on September 25 and came into force on September 26, 2020, was the subject of a (first) successful referendum request on March 2, 2021, and was put to the vote (and accepted by the people) in the referendum of June 13, 2021. The Federal Council's decree on the June 13, 2021 vote, definitively setting out the items to be put to the vote on that day, dates from March 15, 2021, less than four months before the vote. However, the Federal Council had already decided to put this item to the vote on June 13 - along with four other items - at its meeting of February 3, 2021, i.e. more than four months before the date of the vote, but before the referendum request had been successful, clearly specifying that the said item would be "submitted to the popular vote only if the referendum [...] is successful; the Federal Council's decision is therefore taken subject to this reservation". The same procedure was used for the (second) referendum against the (urgent) amendment of March 19, 2021 to the COVID-19 law, which was put to the vote in the referendum of November 28, 2021: the referendum request was successful on August 16, 2021, with the Federal Council's decree definitively fixing the items to be put to the vote on August 31, 2021, although these items had already been announced, this time "subject to" the successful outcome of the referendum request, on June 30, 2021. This was also the case for the (third) referendum against the (also urgent) revision of the COVID-19 law, aimed essentially at extending its period of validity, decided by Parliament on December 22, 2022 and to be put to the vote on June 18, 2023.
34 The practice had already been the same for the other two popular votes on urgent legislation held over the past two decades, that of February 9, 2003, concerning the Federal Act on the Adjustment of Cantonal Contributions to Costs in Health Insurance of June 21, 2002, and that of June 9, 2013, concerning the revision of the Federal Asylum Act of September 28, 2012. In these two cases, however, unlike the previous ones, the referendum request had already been successful when the date of the vote was set, so that the Federal Council did not have to issue a decision "under reserve".
C. Paragraph 2: cantonal implementation
35 Paragraph 2, which has not been amended since 1976, stipulates - or reiterates - that federal votes are implemented and organized by the cantons: "Each canton shall ensure the execution of the vote within its territory and shall adopt the necessary measures". As the Federal Council's message makes clear, this provision merely reiterated the rule and practice that had prevailed until then.
36 It is therefore up to the cantons, each for its territory and its electorate or, more precisely, its fraction of the federal electorate, to convene those entitled to vote, to distribute the voting material in accordance with - and within the deadlines laid down by - federal law, and to organize the operations and conduct of the voting (ballot box voting, early voting, postal voting, possibly electronic voting, voting by citizens residing abroad, counting and recording the results, etc.). As we shall see, through other provisions of the law on political rights, federal law provides a fairly strict "framework" for the cantons in their jurisdiction and their task of carrying out federal votes.
37 In addition, for each vote, at the same time as the Federal Council determines the subjects to be voted on in accordance with paragraph 1bis, it sends the cantonal governments a circular on the forthcoming vote, reminding them of the applicable rules and asking them to ensure that all the necessary measures are taken to ensure that the vote takes place smoothly and in accordance with the law. These circulars also contain the precise and binding wording of the questions to be put to the vote, which must of course be the same throughout Switzerland.
38 Finally, in addition to these specific instructions for each vote, there are various other general circulars from the federal authorities to the cantonal governments, designed to guarantee the quality of voting in particular circumstances, notably for postal voting and voting by Swiss citizens abroad, as well as with regard to the tabulation of results.
39 Nevertheless, even though federal law has a relatively strong presence, the execution of federal votes by the cantons leaves room for cantonal law, so that there may be some differences between cantons on certain points that federal law does not regulate, such as the organization, composition and operation of polling stations, for example.
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