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- Art. 5a FC
- Art. 6 FC
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- Art. 29a FC
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- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
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- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- 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
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
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- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
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- Art. 40 PRA
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- Art. 48 PRA
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- Art. 50 PRA
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- Art. 52 PRA
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- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
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- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
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- Art. 67 PRA
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- Art. 75 PRA
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- Art. 76 PRA
- Art. 76a PRA
- Art. 90 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
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- 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. Background, Systematics und Importance of the Provision
1 As indicated by its title, which is similar in all three language versions, art. 12 deals with the nullity or invalidity of ballot papers. As already noted, like all the other provisions of Title 2, Art. 12 applies only to federal votes, not to elections, i.e. only to ballot papers (Stimmzettel), not to election papers (Wahlzettel). The validity or nullity (or invalidity) of the latter is regulated elsewhere, in other provisions of the law, more specifically in art. 38 para. 1 and art. 49 para. 1, which contain rules that are in part identical to those of art. 12.
2 This provision already existed in the original version of the law, in 1976, when it was taken over from the Federal Council's proposals, which the Chambers largely followed, subject to a few modifications of a more formal nature. At that time, it contained only two paragraphs, the first two in the current version, the third having been added later, during the partial revision of the Political Rights Act of June 21, 2002, in force since January 1, 2003.
3 For the rest, the text of art. 12 has undergone two further modifications. Firstly, letter e of para. 1, according to which ballot papers which "in the case of a postal vote, [...] have not been delivered to a Swiss post office" are null and void, was repealed by an amendment, dated March 22, 1991 and in force since July 1, 1992, to the former Federal Act on the Political Rights of the Swiss Abroad of December 19, 1975.
4 On the other hand, the text of Art. 12 has undergone a minor modification, consisting in replacing, in the French version of para. 2, by replacing the expression "timbre de contrôle ou estampille" with "timbre de contrôle", and another in the German and Italian versions of para. 3, with the entry into force on August 1, 2008 of the Federal Act on the Formal Updating of Federal Law of March 20, 2008.
5 In terms of structure, Art. 12 therefore comprises three paragraphs. The first lists the various grounds for nullity or invalidity of ballot papers prescribed by federal law, while the second reserves any other grounds for nullity or invalidity under cantonal law. The third, added at a later date, reserves the provisions applicable to electronic voting trials, insofar as, in this case, voting is not carried out by means of traditional ballot papers, so that the conditions of validity of the vote are subject to specific rules. We will return to each of these paragraphs in the commentary proper (section II).
6 First, as regards the importance of the provision in general, reference can be made, at least in part, to what has already been said in the commentary on art. 10, 10a and 11, namely that, given the significance of popular votes in the Swiss constitutional and political system, with the very high degree of direct democracy that characterizes it, the rules governing the organization of these votes are of fundamental importance. Unlike the three preceding provisions, however, which relate in particular to the preparation and distribution of voting material, and to the provision of information to citizens in the run-up to these votes, art. 12 should probably be seen in the context of another dimension of the freedom to vote, as guaranteed by art. 34 of the Swiss Constitution. According to the case law of the Swiss Federal Supreme Court, the freedom to vote implies a right to ensure that no voting result "shall be recognized if it does not express the free will of the electorate", a right to the correct establishment and recording of results or, more precisely, in the words of the Federal Supreme Court, a "right to a regular execution of the ballot [...] as well as the right to an exact and precise counting of votes". From this right flows a requirement for precision in the qualification, sorting and counting of ballot papers, which must carefully distinguish and separate invalid or void ballot papers, blank ballot papers and valid ballot papers, as prescribed by art. 13 and 14 of the LDP, to which we will return later.
7 All cantons have provisions similar to art. 12, which deal with ballot papers, in particular their nullity or invalidity, as well as the manner in which they are to be treated in establishing and recording the results.
II. Commentary
A. Paragraph 1: list of grounds for invalidity of ballot papers
1. Introductory remarks and general remarks
8 Para. 1, which dates from the original 1976 version, contains a list of causes - or cases - of invalidity of ballot papers. As stated in the Federal Council's message, the purpose of this provision is "to facilitate the task of polling stations by enabling them to judge the validity of ballot papers more easily".
9 The list of grounds for nullity or invalidity of ballot papers in para. 1 applies to both in-person voting at the ballot box and postal voting, but does not apply to electronic voting, for which special rules must be laid down, as specified in para. 3 of art. 12.
10 Generally speaking, the various grounds for nullity mentioned in each of the letters of para. 1 are all related to other provisions of the law, provisions which appear in Title 1 of the law, in principle in art. 5, i.e. which relate to the general principles of the right to vote and the exercise of this right. Art. 12 must therefore be read in conjunction with these other provisions of the law.
11 However, it must also be read in conjunction with art. 13 and 14 of the LDP, which follow it, since it is in these provisions that the sanction or consequence of the invalidity of the ballot papers in question is set out. According to art. 13 para. 1, "invalid ballot papers shall not be taken into consideration for the determination of the results of the vote". In concrete terms, this means that even if a ballot paper contains a "yes" or "no" vote, or remains "blank", it will be counted separately in accordance with art. 12 para. 1 (i.e. as "invalid" ballot papers), but will not be taken into account in the calculation of "yes" and "no" votes, which is decisive in determining the outcome of the vote, nor will it be taken into account in the separate count of "blank" ballot papers.
12 It should be noted that para. 1 only covers the causes of formal invalidity or nullity of ballot papers, and does not therefore regulate all cases in which a vote will not be taken into account because it is materially invalid, for example, when the person who cast it is not entitled to vote. In order to determine whether a vote is valid or invalid, the grounds for invalidity set out in para. 1 of art. 12 must therefore be supplemented not only by an examination of the nullity clauses of cantonal law, which are reserved by para. 2 of art. 12, but also by examining the grounds for material invalidity of votes.
2. Letter a: invalidity of unofficial ballots
13 According to letter a of para. 1, ballot papers that "are not official" are invalid. This first case of nullity refers to the rule of art. 5 para. 1 of the LDP, according to which "voting may only be exercised by using official ballot papers and election papers", the provision specifying that "[t]he same applies to entry ballot papers issued by the cantons with a view to computerizing the counting of votes".
14 The rule that only official ballot papers or election bulletins are accepted was new in 1976. Until then, "the cantons had been able to tolerate the use of sheets made available to citizens by private associations", a practice which "enabled political parties and interest groups to provide their supporters with pre-printed responses, thus facilitating their propaganda and the task of voters". Despite some resistance, the rule in art. 5 para. 1 and art. 12 para. 1 let. b of the LDP was imposed "to avoid pressure and the risk of confusion".
15 Today, this rule is considered standard practice, and is also applied by the cantons. There are only a few exceptions, for election ballots - not ballot papers - in majority elections, where unofficial ballots are sometimes, but rarely, allowed.
16 The rule is justified by the fact that the use of ballot papers other than official ballot papers, potentially of different sizes, shapes and contents, could make counting operations difficult and give rise to risks of confusion and irregularity in the counting of results. It therefore prohibits voting by means of a ballot paper copied or produced by citizens themselves or by an organization.
3. Letter b: invalidity of ballot papers completed other than by hand
17 Under letter b of para. 1, ballot papers which "are not completed by hand" are also invalid. This second case of invalidity refers to the rule in art. 5 para. 2 of the LDP, according to which "ballot papers and unprinted ballot papers must be filled in by hand", with the provision specifying that "printed ballot papers may only be altered by handwritten entries".
18 Here again, the rule is customary and fairly general, in that it is found, with identical or very similar wording, in practically all cantons, sometimes with rare exceptions.
19 Its purpose is to prevent or limit what is known as "Stimmenfang", i.e. the systematic collection, filling in or alteration of ballot papers, or the distribution of ballot papers filled in or altered in this way, to use the legal definition given by the Penal Code. Vote-grabbing is punishable by a fine under art. 282bis of the Swiss Penal Code, a provision which was introduced by the 1976 Political Rights Act and came into force with it on July 1, 1978.
20 This rule does not, of course, apply to electronic voting, where there is no question of ballot papers being filled in by hand, and where special provisions apply, as set out in para. 3 of art. 12.
4. Letter c: Invalidity of ballots which do not clearly express the will of the person voting
21 In accordance with letter c of para. 1, ballot papers that "do not clearly express the will of the voter" are also invalid. This third case of nullity does not refer specifically to another provision of the law, but is the result of a rule that is also fairly general and customary, found in several cantons, with identical or very similar wording. And it seems logical. If it is not possible to determine the will of the person who voted, it is logical that his or her vote should not count, and that the ballot should therefore be considered null and void or invalid.
22 While, in the case of election ballot papers, the principle of proportionality may justify or even require, in certain cases, that only partial nullity or invalidity be retained, the question is more delicate in the case of ballot papers. In this case, in fact, the question is generally binary, so that either it is possible to determine the will of the person who filled in the ballot paper, and his or her ballot paper must then be considered valid, or this is not possible, and the ballot paper must be qualified as null or invalid; the same should apply, in our opinion, in cases of serious doubt as to the will expressed by the person who voted. The principle of proportionality can - and must - play a role, however, insofar as, given the importance of political rights in our country, the competent authority, i.e. the polling station as a general rule, cannot be excessively formalistic.
5. Letter d: Invalidity of ballot papers containing remarks prejudicial to honour or marked with signs
23 Lastly, letter d of para. 1, ballot papers which "contain remarks prejudicial to honour or are marked with signs" are null and void. This fourth and last case of invalidity refers, according to the Federal Council's message, to the rule of art. 5 para. 7 LDP, according to which "[t]he secrecy of the vote must be safeguarded", a requirement which, over and above this legal provision, derives directly from the freedom to vote guaranteed by art. 34 Cst.
24 As already indicated, the two chambers of Parliament have slightly modified the wording of letter d in relation to the Federal Council's draft, which stipulated that ballot papers "containing indications (observations, signs, etc.) unrelated to the subject of the ballot" should be null and void. In its message, the Government explained the ratio legis of the proposed provision as follows:
"By prohibiting inscriptions extraneous to the subject of the ballot, the aim is to avoid any additional remarks and signs on ballot papers, each additional indication being likely to violate the secrecy of the vote. This is why it is important not only to declare void ballot papers containing remarks prejudicial to honor, but to apply this provision to all ballot papers containing additional indications."
25 After some lengthy discussion, Parliament preferred the current wording, according to which ballot papers that "contain remarks prejudicial to honor or are marked with signs" are void. The discussion centered on whether to limit the nullity to ballot papers containing information that would identify the voters - and thus undermine the secrecy of the ballot - and thus tolerate other signs and even possible expressions of bad humor, or, on the contrary, to be (very) strict and formalistic, excluding any sign that is unrelated to the subject of the ballot. In the end, it was the more tolerant version proposed by the National Council that prevailed, so that only those ballot papers should be considered void or invalid which either include remarks prejudicial to honor, or contain signs that make it possible to recognize the identity of the voters, i.e. which violate the secrecy of the vote.
26 Here again, therefore, we find to some extent the requirement of proportionality already mentioned above.
6. Letter e (repealed)
27 On the content of this provision, and its repeal, see N 3 above.
B. Paragraph 2: reservation of (other) grounds for nullity under cantonal law
28 The second paragraph of Art. 12, which dates back to 1976 and which the Chambers have taken over unchanged from the Federal Council's proposals, provides that "[t]he causes of nullity and annulment arising from cantonal procedure (electoral envelope, control stamp, etc.) are reserved". No comment was made on this in the Federal Council's message.
29 As stipulated in art. 10 para. 2 of the LDP, federal referenda are organized by the cantons, within the framework of the provisions of federal law. In particular, it is the cantons that distribute the voting material, some elements of which - in addition to those provided for and governed by federal law - are governed (solely) by cantonal law. In addition, the cantons have the mandatory power to enact legislation guaranteeing, in certain areas such as early voting and postal voting, the verification of citizenship and the "flawless counting of votes", as well as "safeguarding the secrecy of the ballot and preventing abuses".
30 It is therefore logical that para. 2 of art. 12 reserves, alongside or in addition to the causes of nullity or invalidity of ballot papers listed in para. 1, the grounds for invalidity which are governed by cantonal law. The cantons may, in fact, provide for causes of nullity or invalidity of ballot papers other than those prescribed by art. 12 para. 1, not only for cantonal and communal votes, but also, by virtue of the proviso in para. 2, for federal referenda.
31 Practically all the cantons have nullity or invalidity clauses for ballot papers that are different from - or additional to - those of federal law. And cantonal legislation sometimes distinguishes, in this respect, between nullity clauses applicable to ballot papers and those applicable to election ballot papers; similarly, with regard to ballot papers, they distinguish between general nullity clauses, applicable to both personal voting at the ballot box and postal voting, and certain specific nullity clauses which only concern postal voting. Thus, for example, certain cantonal regulations stipulate that ballot papers are null and void if "several ballot papers have been introduced into a voting envelope, regardless of the content of the ballot papers", or ballot papers "which are accompanied by an appendix", or that in the case of postal voting, the vote is invalid if "the ballot paper is not placed in the closed official reply envelope", if "the legitimation card does not bear the elector's handwritten signature", if "the reply envelope contains more than one legitimation card", or if this reply envelope "arrives at the commune after the set deadline".
32 In the case of federal votes, however, cantonal nullity clauses have their own scope only insofar as they differ from or go further than those already provided for under federal law, in para. 1. It should also be pointed out that when, in the context of a federal vote, it is necessary to interpret a nullity clause that is provided for both by cantonal law and, in identical or largely similar terms, by art. 12 para. 1 LDP, which is relatively frequent, the competent cantonal authority - the polling station - can only interpret it in the light of its meaning as derived from federal law.
C. Paragraph 3: reservation of grounds for nullity in the case of electronic voting
33 The third paragraph of art. 12, according to which "the canton experimenting with electronic voting shall lay down in its law the conditions of validity and the grounds for invalidity of the vote", was added, as mentioned above, in 2002. The provision was intended to "consolidate the legal foundations on which electronic voting pilot projects are based". The Federal Council's message explained the addition of this provision as follows:
"Traditional forms of voting require the use of official ballots, whether for votes or elections (art. 12, para. 1, let. a, art. 38, para. 1, let. b, and art. 49, para. 2, let. a, LDP). These ballots may only be completed or modified by hand (art. 12, para. 1, let. b, art. 38, para. 1, let. c, and art. 49, para. 2, let. c, LDP). However, these conditions cannot be maintained for the pilot tests, and electronic voting will also need barriers that will establish the validity and lawfulness of the voter's expression, if only to prevent a person not entitled to vote from voting under a false name, or a person not entitled to vote from voting several times. It is up to the canton in which the pilot test with electronic voting is to take place to lay down these conditions in its law. To be valid, the canton's provisions must be approved by the Confederation (art. 91, para. 2, LDP). The Federal Council will make this a sine qua non condition for issuing the authorization referred to in art. 8a of the LDP.
34 It will be recalled very briefly in this connection - even if the system of electronic voting trials has been interrupted from June 2019 to March 2023 - that under the terms of art. 8a LDP, introduced by the revision of June 21, 2002, in force since January 1, 2003, the Federal Council "may, in agreement with the cantons and communes concerned, authorize the experimentation of electronic voting by limiting it to a part of the territory, to certain dates and to certain objects" (para. 1), specifying that "the verification of voter eligibility, the secrecy of the vote and the counting of all votes must be guaranteed" and that "any risk of abuse must be ruled out" (para. 3).
35 Para. 3 of Art. 12 supplements this provision by specifying that it is up to the canton that intends to experiment with electronic voting to set out "in its law the conditions of validity and the grounds for invalidity of the vote". As indicated, the nullity or invalidity clauses provided for in para. 1 of art. 12, as well as those traditionally set by the cantons and reserved by art. 12 para. 2 LDP, which are tailor-made for personal voting at the ballot box and postal voting, cannot be applied to electronic voting. Other provisions are therefore essential to guarantee the validity of electronic voting and provide grounds for its invalidation, thereby ensuring the fairness of the ballot. Such provisions are all the more necessary as any irregularities or manipulations in electronic voting can affect a large number of people.
36 In particular, electronic voting must guarantee "that only electors can take part in the ballot (verification of elector status)", "that each elector has a single vote and can vote only once (uniqueness of vote)", "that third parties cannot systematically and effectively intercept, modify or divert the votes cast", third parties cannot systematically and effectively intercept, modify or divert electronic votes (assurance of the faithful expression of the electorate's will)", "that third parties cannot gain knowledge of the content of electronic votes (secrecy of the vote)", and "that systematic fraud is excluded (regularity of the ballot)".
37 Cantonal provisions adopted on the basis of para. 3 are subject to approval by the Confederation, pursuant to art. 91 para. 2 LDP, which is given by the Federal Chancellery in non-contentious cases. These approved provisions are themselves one of the conditions for the Federal Council's general authorization to carry out electronic voting trials, in accordance with art. 8a of the LDP and art. 27a of the ODP.
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