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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. 32 FC
- Art. 42 FC
- 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
- Art. 146 CO
- 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
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
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- Art. 19 PRA
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- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 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
- Art. 53 PRA
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- 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
- Art. 67a PRA
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- Art. 75 PRA
- Art. 75a PRA
- 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. History, systematics and importance of the provision
1 As indicated by its title, which is the same in all three language versions, art. 14 deals with the recording of votes and, like the other provisions of Title 2, applies only to (federal) votes, and not to elections, as has already been noted in the case of these other provisions. In the case of elections, the question of minutes is dealt with elsewhere in the law.
2 Art. 14 existed in almost the same wording as the current text in the original 1976 version of the law, where it already contained its three paragraphs, which had been taken over, without any change apart from a very slight editorial amendment to paragraph 1, and virtually without discussion, from the Federal Council's proposals.
3 Since then, only two relatively minor changes have been made to the provision. Firstly, paragraph 1 was slightly expanded in the revision of June 21, 1996, which came into force on November 1, 1997, to complete the list of headings to be included in the minutes, by adding, alongside the number of registered voters, the number of Swiss abroad ("including the number of Swiss abroad"). In this respect, the two chambers of Parliament adopted the Federal Council's proposals in their entirety - subject to a minor editorial amendment - and without discussion. The Federal Council had also taken advantage of the revision to change the content of the provision slightly, but only in form. According to the Federal Council's message, the addition of the obligation to mention the number of Swiss citizens abroad in the minutes was merely intended to codify "the practice that has developed".
4 The second amendment to Art. 14 concerns paragraph 2, which was clarified in the partial revision of the law of June 21, 2002, which came into force on January 1, 2003. Here too, the Federal Assembly adopted the Federal Council's proposal unchanged, with the exception of a formal detail, and without discussion. The only new feature of this revision was to set a thirteen-day deadline for the cantons to publish the results of the vote in their official gazette. We will return to the reasons for this clarification later.
5 Paragraph 3 has remained unchanged since the law came into force in 1978.
6 In terms of its structure, Art. 14 therefore comprises three paragraphs, dealing with the drawing up of the voting minutes by the polling station, and the contents of these minutes (para. 1), as well as the transmission of these minutes to the cantonal government, for a summary of the provisional results in the canton, in the first instance (para. 2), and then the transmission of these results to the Federal Chancellery, in the second instance (para. 3). We will return to each of these paragraphs below, in the commentary proper (section II).
7 With regard to the importance of the provision in general, reference can be made to what has already been said in the commentary on art. 10 to 13, on the significance and fundamental importance of the rules governing the organization of popular votes in the Swiss constitutional and political system, characterized by a (very) strong dose of direct democracy. This applies in particular to the correct establishment of the results of each ballot, as well as the documentation of these results, of which the minutes are a central element. As already mentioned in relation to articles 12 and 13, the guarantee of the freedom to vote (art. 34 Cst.) implies a requirement for precision in the qualification, sorting and counting of ballot papers, which must carefully distinguish and separate invalid or invalid ballot papers, blank ballot papers and valid ballot papers. It may be added that any vote - like any election - is based on the assumption that its outcome is established correctly or, to use the expression of the Federal Court, that the freedom to vote implies a "right to a regular execution of the ballot and to a precise and exact counting of the votes". This requirement gives rise to an obligation to document the results, so that it can be verified, if necessary, that they have been established correctly and in compliance with legal provisions.
8 All cantons thus have provisions similar to Art. 14 in their own areas, and in different forms, which deal with the counting of votes, the tabulation of results and the documentation of these operations, by means of minutes.
II. Commentary
A. Paragraph 1: preparation and content of the voting minutes
9 Paragraph 1 of Art. 14 stipulates that "[a]fter each vote, the officials of each polling station shall draw up a report in which they shall indicate the total number of registered voters, including the number of Swiss abroad, the number of voters, the number of blank, invalid and valid ballots, as well as the number of voters who accepted the project and the number who rejected it". The provision therefore deals with the drawing up of the minutes and their content.
10 As is clear from the text of the provision, the obligation to draw up minutes falls on the "officials of each polling station", and this "after each vote". It should be said, rather, for each subject submitted to a vote, insofar as separate minutes are required for each of these subjects (see N 13 below). There will therefore be as many minutes as there are polling stations in each canton, multiplied by the number of items put to the vote on the date in question.
11 It should be pointed out at this point that the federal law does not regulate the question of polling stations, which therefore falls within the competence of the cantons, as a manifestation of "the execution of the vote" within the meaning of art. 10 para. 2 LDP. All cantons have regulations on polling stations (or electoral offices), governing their composition and tasks. Generally speaking, these polling stations are set up on a communal scale - often with several polling stations or polling places per commune - often assisted by a cantonal polling station. They are made up of citizens, usually from the commune, with political tendencies or parties also represented, optionally or compulsorily, if necessary "equitably" or "fairly". This relatively open composition - in the form of a collegiate body representing the population and, where appropriate, political tendencies or parties - is seen as an additional guarantee of the correct establishment of the results. What's more, the counting of votes is often, by law, open to the public, which also contributes to the idea of transparency.
12 While the Federal Act is silent on the subject of polling stations, it does regulate the content of the minutes to be completed by each polling station, in the sense that Art. 14, para. 1 lists the various headings or references that must appear in this document, namely "the total number of registered voters, including the Swiss abroad, the number of voters, the number of blank, invalid and valid ballots, as well as the number of voters who accepted the proposal and the number who rejected it". As emphasized in the Federal Council's message, the "indications required by paragraph 1 are indispensable for verifying the data relating to the decisive majority" within the meaning of art. 13 of the LDP, and for deciding on the outcome of the vote accordingly. These data, particularly the first two (number of registered citizens and number of voters), also make it possible to determine the turnout rate. With regard to the number of invalid and blank ballots, which are not taken into account in determining the result of the vote but are counted as such, please refer to the commentary on art. 13 (especially para. 1).
13 Federal law deals not only with the content of the minutes, but also with the form they must take. Art. 4 para. 1 of the Ordinance on Political Rights stipulates that "the minutes must be drawn up in accordance with the model in Appendix 1a (normal case) or 1b (initiative and counter-project)". These two appendices thus include two different models of minutes: one for votes concerning a single object or act (a constitutional revision proposed by the authorities or a referendum on a law, or a popular initiative to which no counter-proposal is opposed, for example); the other for votes concerning a popular initiative and a direct counter-proposal by the Federal Assembly, i.e. votes in which citizens are asked to answer three questions, including the subsidiary question, according to the system of art. 139b of the Federal Constitution and art. 76 of the LDP. In this specific case, the minutes therefore provide not only the number of votes cast in favor of each of the two texts and the number of votes cast against them, but also the answers to the subsidiary question, the preference between the two texts, and consequently the number of votes cast for each of the possible answers. In any case, it follows from these models that separate minutes must be drawn up for each item put to the vote.
B. Paragraph 2: Establishment of provisional results in the canton and communication to the Federal Chancellery
14 Under Art. 14, para. 2, the minutes are then "forwarded to the cantonal government", so that it can "summarize the provisional results for the entire canton, communicate them to the Federal Chancellery and publish them in the canton's official gazette within 13 days of the day of the vote. If necessary, it publishes the results in a separate issue.
15 In each canton, the cantonal government therefore has the task of centralizing the minutes, on the basis of which it "summarizes the figures and communicates the provisional totals to the Chancellery". Art. 5, paras. 1 and 2 of the ODP actually provides for a slightly different, and slightly more precise, process for centralizing the minutes and transmitting the provisional results: "The cantonal government instructs the official services designated for this purpose by cantonal law to immediately transmit, by an appropriate means, the results of the ballot to the cantonal central service responsible for collecting them" (para. 1), whereupon "[t]he cantonal central service immediately transmits, in electronic form, the provisional results to the federal service designated by the Federal Council" (para. 2). The transmission of the minutes to the cantonal central service and that of the provisional results to the Federal Chancellery must therefore take place without delay.
16 Art. 5 para. 3 ODP recalls and specifies the content of these provisional results as they must be transmitted to the federal service: "The provisional results of the communes and the canton transmitted by the cantonal central service include: a. the number of electors; b. the number of yes and no votes, blank ballots and invalid ballots; c. the number of votes cast and the number of invalid ballots; d. the number of votes cast and the number of invalid ballots; e. the number of votes cast and the number of invalid ballots. in addition, in the case of popular initiatives accompanied by a counter-proposal, the number of votes recorded for each of the three questions in the minutes under the heading 'no response' and the number of votes received, in the subsidiary question, by the popular initiative and by the counter-proposal".
17 Finally, art. 5, para. 4 of the ODP stipulates that these "provisional results must not be made public before 12 p.m. on the day set for the vote".
18 Nevertheless, and subject to this reservation, the second part of art. 14 para. 2 of the law stipulates that it is the responsibility of the cantonal government to publish these provisional (cantonal) results "in the Official Gazette of the Canton", at the latest "within 13 days of the day of the vote"; the provision even specifies that, "if necessary, it shall publish the results in a separate issue". As the Federal Council's message reminds us, this publication of provisional results in the canton's official gazette is important, insofar as it constitutes the starting point of the appeal period for any challenges to these results:
"The time limit for appeals in matters of voting rights - 2nd paragraph - begins to run from the notification of the provisional cantonal result of the vote in the official publications organ (art. 75, 2nd paragraph)."
19 As we have seen, the second paragraph was amended in the revision of June 21, 2002, which came into force in 2003, to set a deadline of thirteen days for the cantons to publish the results of the vote in their official gazette. The introduction of this maximum deadline was prompted by the reform of the justice system, which made the Federal Supreme Court - and no longer the Federal Council - the competent authority to hear appeals in matters of federal political rights, especially appeals concerning federal votes, as the Federal Council's message on this revision explained:
"The new provision gives the cantons a maximum of thirteen days in which to publish the results in their official gazette, failing which it will no longer be possible to validate the results at national level in time, since the reform of the justice system brought about by the new Constitution has made the Federal Supreme Court the new appeal body (art. 189, para. 1, let. f, Cst.), which was previously the Federal Council. This being the case, the latter will no longer be able to make its own decisions and simultaneously validate the result of the vote (cf. art. 15 and 81 LDP), which will lead to delays. Measures must therefore be taken to prevent any blockage in the smooth running of democracy, which could result from a cleverly orchestrated flood of appeals (see also the commentary on art. 15). One of these measures will be to set a deadline for cantonal authorities to publish the results of their canton in their official gazette, if necessary in a special issue, the procedure being the same as that used for federal elections (cf. the commentary on art. 52, para. 2)."
20 On this point, art. 6 ODP supplements and clarifies the legal provision, stipulating that "[t]he cantonal government shall immediately publish the content of the minutes of the vote, excluding any observations or decisions, in the official cantonal gazette. It shall indicate the channels of appeal within the meaning of art. 77 LDP".
C. Paragraph 3: transmission of minutes to the Federal Chancellery and destruction of ballot papers
21 Under the terms of Art. 14, para. 3, "[t]he cantons shall transmit the minutes and, on request, also the ballot papers, within ten days of the expiry of the appeal period (Art. 79, para. 3), to the Federal Chancellery. Once the result of the vote has been validated, the ballot papers are destroyed". This provision, which has not been amended since the law came into force in 1978, therefore deals with the transmission of the minutes - and no longer the provisional results - to the Federal Chancellery once the appeal deadlines have expired, on the one hand, and the destruction of the ballot papers, on the other.
1. First sentence: transmission of minutes
22 The provision stipulates that the minutes are to be forwarded to the Federal Chancellery by the cantons "within ten days of the expiry of the appeal period (art. 79, para. 3)". Art. 79 para. 3 LDP, to which reference is made, stipulates that "the cantonal government shall notify its decision on the appeal and the other measures taken in accordance with arts. 34 to 38 and 61 para. 2 of the Federal Law of December 20, 1968 on administrative procedure, and shall also communicate them to the Federal Chancellery". In particular, these provisions of administrative procedure oblige the authority - in this case the cantonal government as the (first) appeal authority - to notify its decisions, indicating the channels and time limits for appeal. Based on this reference, the first sentence of art. 14 para. 3 therefore means that the minutes must be sent to the Federal Chancellery within ten days of the expiry of the deadline for appealing against (any) decisions on appeal by the cantonal government. It should be remembered that cantonal government decisions on appeals in this area (i.e. decisions concerning votes, within the meaning of art. 77 para. 1 let. b LDP) are now subject to "appeal to the Federal Tribunal in accordance with the Federal Tribunal Act of June 17, 2005". This extended to the Federal Tribunal the power to rule on disputes concerning federal political rights, a power which previously belonged - in the case of appeals "concerning votes" within the meaning of art. 77 al. 1 let. b LDP - to the Federal Council. In accordance with art. 100 al. 3 let. b FSCA, this appeal to the Federal Supreme Court must be lodged within five days of notification of the cantonal government's decision on the appeal.
23 The ten-day period within which the canton must send the voting minutes to the Federal Chancellery therefore begins when the five-day period for any appeals against the cantonal government's decision on appeal expires.
24 Logically, if there has been no appeal to the cantonal government, this transmission must take place earlier, at the latest within ten days of the expiry of the deadline for lodging an appeal with the cantonal government, i.e. within three days of "the discovery of the grounds for the appeal, but at the latest on the third day after publication of the results in the official gazette of the canton" (art. 77 para. 2 LDP).
25 At the request of the Federal Chancellery, the cantons must also send the ballot papers to the Federal Chancellery within the same time limit.
2. Second sentence: destruction of ballot papers (and minutes)
26 As already mentioned, the second sentence of paragraph 3 deals with the destruction of ballot papers, stating: "Once the result of the vote has been validated, the ballot papers shall be destroyed". The text of the provision thus explicitly refers to the validation of the results, which is itself governed by art. 15 of the LDP, as the determining moment for this destruction.
27 The Federal Council's message gave the following explanation:
"Paragraph 3 specifies that ballot papers are destroyed once the results of the vote have been validated. Under current law, the cantons are required to make ballot papers available to the Federal Council. This provision is unclear.
28 The idea is therefore, in the words of art. 15 para. 1 LDP, to wait for the "Federal Council to establish the definitive result of the vote (validation) as soon as it has been established that no appeal has been lodged with the Federal Tribunal, or as soon as the rulings on such appeals have been handed down" before proceeding to destroy the ballot papers.
29 It should also be pointed out that art. 4 para. 3 ODP deals with the destruction not of ballot papers, but of voting records, stipulating that "[t]he Federal Chancellery shall determine the time from which the records may be destroyed".
The author would like to thank Mr. Beat Kuoni, legal expert in the Political Rights Department of the Federal Chancellery, for his careful review of this contribution.
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