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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
- Art. 30 FC
- 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
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- 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
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- 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 of origins
- II. Significance of the provision
- III. Commentary on the text of the norm
- Materials
- Bibliography
I. History of origins
A. Federal competence and limitation of the grounds for exclusion
1 Under the FC 1848, Swiss citizens (men) who had reached the age of 20 were entitled to vote at their place of residence, provided they were not excluded from the right to vote under the legislation of the canton of residence. Doctrine usually divides the requirements for the right to vote into the ability to vote and the right to vote. The right to vote (also voting right in the narrower sense) typically depends on the place of residence in the community concerned. The ability to vote is further divided into objective requirements (at that time gender, today only age and Swiss citizenship) and the subjective requirement (no exclusion from the right to vote). The definition of active citizenship, as far as exclusion from the right to vote was concerned, thus lay with the cantons, even in federal matters.
2 The constitutional legislator adopted this regulation in the FC 1874, but in doing so created an explicit competence basis for the Confederation to establish uniform regulations on voting rights with art. 74 para. 2 FC 1874. Since the Confederation had already previously regulated all requirements with the exception of the exclusion of the right to vote, this basis could only refer to this competence. Such a basis of competence is in itself unnecessary with regard to the exclusion from political rights in federal matters, since this already results from the federal government's organisational autonomy. However, the Confederation claimed for itself to also regulate the exclusion from voting rights in cantonal and communal matters.
3 The Federal Assembly had already enacted the Federal Act on Federal Elections and Votes under the FC 1848 in 1872. However, this law was limited to repeating in art. 2 the constitutional provision of art. 63 FC 1848. In the 19th century, two bills with which the Confederation wanted to make use of this legislative competence failed in referendum votes. Although it is a matter of course for the Confederation to regulate the conditions and content of the right to vote in federal matters by virtue of its organisational autonomy, this competence was still controversial in the 19th century from a political point of view. As early as 1915, the Federal Supreme Court declared census voting rights, which made voting rights dependent on the payment of a tax, to be incompatible with political equality. However, according to this practice, the cantons were allowed to continue to exclude those unable to pay from the right to vote, since the Federal Supreme Court doubted their expertise in public affairs. The cantons also excluded other categories of Swiss citizens from the right to vote. For example, criminal convictions or being poor led to exclusion from the right to vote. In some cantons, the ban on drinking in public houses, which was the main punishment, could lead to exclusion from the right to vote, and in the canton of Geneva, even membership of the Communist International.
4 When the Confederation took over further powers, it also partly regulated the related grounds for exclusion from the right to vote, which also applied to cantonal and communal matters under the FC 1874 (cf. n. 2 above). Thus, with the enactment of the SchKG in 1889, the Confederation still left it to the cantons to determine the consequences of bankruptcy and fruitless attachment. In 1920, however, the Federal Assembly enacted the Federal Act on the Public Law Consequences of Fruitless Attachment and Bankruptcy and restricted the cantons in excluding the right to vote due to bankruptcy or fruitless attachment. The debtor could only be excluded from the right to vote if the court determined that he or she was substantially at fault for the loss of assets. The federal legislature limited the exclusion from voting rights in this case to a maximum of four years. This limited possibility of exclusion from the right to vote was abolished in 1971. Then, within the framework of the criminal law competence it had assumed, the Confederation also regulated the cessation in civil honour as a secondary penalty to penal servitude and imprisonment, which also led to exclusion from the right to vote. The corresponding provision was also repealed in 1971.
5 Although the Confederation extended the right to vote to Swiss women in 1971 as part of a constitutional revision, it was not until the PRA came into force in 1978 that the federal legislature succeeded in completely regulating exclusion from the right to vote under federal law and in limiting it to cases of incapacitation due to mental illness or mental incapacity with Art. 2 PRA. The cantonal exclusion rules remained reserved in the Federal Constitution until 1991 and were only deleted with the introduction of the voting age of 18 and the corresponding revision of the Constitution. However, Art. 2 PRA had already rendered the constitutional provision obsolete before then.
B. Relationship to constitutional law and the CC
6 Although the PRA today regulates political rights at federal level, the law no longer defines the prerequisites and content of the right to vote since the legislature repealed art. 1 of the PRA in 2002. The norm was deemed obsolete after the total revision of the Federal Constitution, as the constitutional legislator standardised the prerequisites and content of the right to vote at the constitutional level in art. 136 para. 1 and 2 FC. Accordingly, the PRA regulates the composition of the electorate only with regard to exclusion from the right to vote.
7 However, since the constitutional legislator also regulated exclusion from the right to vote in art. 136 para. 1 FC, the legislator also temporarily repealed art. 2 PRA with the total revision of the Federal Constitution. The current provision was only reintroduced in 2013 in a new formulation in the course of the revision of adult protection law. Since the revision of the adult protection law, the Constitution grants political rights to all Swiss citizens who have reached the age of 18 and are not incapacitated due to mental illness or mental incapacity, although the civil law institute of incapacitation no longer exists. Instead of amending the Constitution, the legislature wanted to "reinterpret" the Constitution through art. 2 PRA and focus on comprehensive guardianship due to permanent incapacity to judge.
8 In terms of content, the comprehensive guardianship was undoubtedly intended to be the successor institute to incapacitation. The comprehensive guardianship is to be ordered if a person is particularly in need of assistance. Although it is to be welcomed that the pejorative concept of mental illness or mental weakness has been removed from adult protection law, it is nevertheless a makeshift approach and the constitution should be revised accordingly.
II. Significance of the provision
A. General
9 The PRA consistently uses the term "right to vote" as a generic term for all political rights to which voters are entitled.
10 According to art. 39 para. 1 FC, the Confederation has the legislative competence to regulate the exercise of political rights in federal matters. To this end, the federal legislature has essentially enacted the PRA and the VPR. If a necessary regulation cannot be derived from federal law, cantonal law is to be applied in accordance with art. 83 PRA. In addition, the PRA often expressly refers to cantonal law (e.g. voting by third parties, art. 5 para. 6 PRA or early voting, art. 7 para. 3 PRA), which even today leads to slightly different procedural modalities for the exercise of voting rights in federal matters at the cantonal level. This is justified by the close interlocking of the procedural provisions for cantonal and federal electoral and voting rights. However, the cantonal implementing provisions require federal approval with constitutive effect.
11 Art. 2 PRA is based on the civil law legal institutions of comprehensive guardianship and precautionary mandate for the exclusion from the right to vote in federal matters (cf. in detail below III). Since the codification principle applies in civil law, there is no room for cantonal law – outside of genuine reservations – to regulate these institutes in this respect. Reservations in favour of the cantons exist in adult protection law primarily in the area of organisational and procedural law. This means that there can be no substantive deviations from cantonal law with regard to the institutes of adult protection law, but there can be deviations in procedural terms. However, Art. 2 PRA does not comment on the question of the procedure by which a person is excluded from the right to vote if the relevant requirements are met (cf. E below).
B. Legal comparison
12 According to art. 39 para. 1 FC, the cantons regulate the exercise of political rights at cantonal and communal level. This competence also includes regulating the exclusion from the right to vote in cantonal and communal matters. In doing so, however, the cantons must comply with the requirements of federal law and, in particular, with fundamental rights. In recent decades, the cantons have abolished all grounds for exclusion that deviate from federal law. The cantons sometimes explicitly refer to the political rights at federal level for the requirements of the right to vote.
13 According to the provision of art. 2 PRA, persons who are under comprehensive guardianship due to permanent incapacity or who are represented by a guardianship representative are also deemed to be incapacitated in political matters without further ado. This automatism is widely criticised by scholars (cf. n. 36 below) and certain cantons deviate from this procedure with regard to cantonal voting rights. The cantons of Vaud and Neuchâtel, for example, have special procedures for exclusion from the right to vote. According to this procedure, the persons concerned are also automatically excluded from the right to vote, but there is a procedure in which the persons can regain the right to vote after an individual examination. The canton of Geneva has gone even further. Whereas under the new constitution of 2012 the voting rights of persons permanently incapacitated could only be withdrawn on the basis of an order by a judicial authority, the canton deleted this provision without replacement in 2020 with reference to art. 29 of the Convention on the Rights of Persons with Disabilities and immediately restored the rights of the persons affected by an exclusion. Other cantons are also considering such a measure.
14 It is to be hoped that the Confederation will also revise the procedure for exclusion from the right to vote in federal matters so that permanent incapacity to judge under civil law does not automatically imply incapacity to judge in political matters. Should a model along the lines of the Canton of Geneva be sought at federal level, this would of course require a revision of art. 136 FC. Even if the political rights of the cantons have converged considerably, the cantons thus prove that they can still act as an "experimental laboratory" for democracy.
III. Commentary on the text of the norm
A. Reference to institutes of adult protection law
15 According to the legislature's intention, art. 2 CPD is intended to adapt the conditions for exclusion from the right to vote under art. 136 para. 1 FC at the legislative level – contrary to the wording of the Constitution – to the revised adult protection law (for criticism, see above n. 7 f.). Since then, art. 2 PRA has linked the exclusion from the right to vote to two new legal institutions under civil law introduced in 2013: the comprehensive guardianship and the advance directive.
B. Comprehensive guardianship
16 The comprehensive guardianship is one of the four types of guardianship provided for by the legislature in adult protection law. In accordance with its name, the comprehensive guardianship differs from the accompanying guardianship, the representation guardianship and the participation guardianship in that it comprehensively removes the capacity to act of the person concerned by law. Nevertheless, a comprehensively assisted person can retain a certain capacity to act within the framework of the law of persons, insofar as he or she is capable of judgement in this regard.
17 The general requirements for ordering a guardianship are set out in art. 390 para. 1 CC, whereby the order may in any case only be made subsidiary to other assistance and must be proportionate (art. 389 CC). A reason for assistance is required (objective state of weakness) as well as a need for assistance, which consists in the need for special protection due to the inability to take care of one's own affairs or to have one's affairs taken care of by granting a power of attorney. A third requirement must result from these two prerequisites: A threat to the welfare of the person concerned. It follows from this that, even if the first two conditions are met, a guardianship is not to be ordered if, for example, the environment provides sufficient support, which also results from the subsidiarity requirement of Art. 389 Para. 1 No. 1 CC.
18 All three of these requirements must be set out in the reasons for the decision of the adult protection authority. The authority must hear the person concerned (art. 447 para. 1 CC) and, under certain conditions, consult an expert opinion. In the case of a comprehensive guardianship that is to be established on the basis of a mental disorder, an expert opinion must always be obtained according to the practice of the Federal Supreme Court. A guardianship is established at the request of the person concerned or a person close to him or her, as well as ex officio (art. 390 para. 3 CC).
19 In addition to these general requirements, which apply to all guardianships, the requirement that the person concerned must be "particularly in need of assistance" is added in the case of a comprehensive guardianship. This means that the need for protection of the person concerned is particularly high, which may be the case if the person is permanently incapacitated. Permanent incapacity is therefore not a prerequisite for comprehensive guardianship, but an example of a case in which comprehensive guardianship may be indicated. While persons under comprehensive guardianship are predominantly permanently incapacitated, permanent incapacity does not necessarily lead to comprehensive guardianship. In the practice of adult protection, even in cases of permanent incapacity, a mere representative guardianship is often sufficient, in which the guardian is assigned a large number of tasks. In view of the fact that exclusion from the right to vote can only be ordered in the case of a comprehensive guardianship, this leads to unequal treatment which calls the regulation into question (see also n. 36 below).
20 The comprehensive guardianship is therefore not necessary in every case, even in cases in which the person concerned cannot in principle bring about any legal effects through his or her actions (cf. art. 389 para. 2 CC). The consequence of comprehensive guardianship is that the person loses his or her capacity to act in full by operation of law and, as the most intrusive measure, may therefore only be ordered if the objective cannot be achieved by other measures.
21 Thus, the adult protection authorities have discretion in selecting the type of assistance, even though the private law literature avoids this term. However, it is nothing other than a demand for the exercise of discretion when the doctrine demands that the authority does not force a case "into an existing corset", but rather aligns the measures to the individual case and also examines combined assistance.
22 Statistics show that comprehensive assistance orders are proportionally more frequent in Ticino and French-speaking Switzerland, which may be due to the fact that in these cantons judicial authorities often decide on the order. These problematic differences have contributed to the fact that the Confederation now wants to examine the problem of the automatic exclusion of comprehensively assisted persons from the right to vote more closely (cf. n. 37 below).
C. Advance directive
23 The second legal institution under adult protection law that can justify exclusion from the right to vote is the provisional mandate under art. 360 ff. CC. An advance directive is a unilateral legal transaction similar to a contract, which at the same time represents an adult protection measure initiated by the person concerned and can supersede other adult protection measures.
24 With an advance directive, a person who is capable of acting can instruct another natural person or legal entity to take over the care of persons or property in the event of the principal's incapacity to judge or to represent the principal in legal transactions (art. 360 para. 1 CC). The advance directive may cover these three tasks cumulatively or alternatively. If the advance directive relates to all three areas and also includes them in full, it largely corresponds to the comprehensive guardianship.
25 With regard to the exclusion from the right to vote, art. 2 PRA requires that the person concerned be "represented" by a person authorised to make provisions. The dispatch does not comment on this formulation, but merely mentions that in the case of persons who are represented under an advance directive, the authorities have previously determined that the person concerned is incapable of judgement. If one follows the areas of responsibility that art. 360 para. 1 CC delineates, the wording of art. 2 PRA would require that the advance directive at least refer to representation in legal dealings. However, the separation of representation in legal transactions from the other areas of responsibility is contrary to civil law doctrine and practice, which have always considered the representation of the ward to be included in the concepts of care of persons and property. The guardianship commissioners thus also have the right of representation in all areas of responsibility assigned to them.
26 From the perspective of art. 2 PRA, however, this has the problematic consequence that potentially every effective advance directive can lead to exclusion from the right to vote, even if it does not extend to all three areas mentioned in art. 360 para. 1 CC. Certainly, even with an advance directive, the person must be permanently incapacitated, which in practice will probably also require a comprehensive advance directive. Nevertheless, the wording of art. 2 PRA would equate comprehensive guardianship and an advance directive, which does not cover all three areas of art. 360 para. 1 CC, as alternative prerequisites and thus place very different requirements on them. The legislature has not commented on this imbalance, which is why the provision must be interpreted, taking into account the principle of equality of rights, to the effect that only advance directives that relate to all three areas (care of persons and property and representation in legal transactions) can lead to exclusion from the right to vote. The equation of the two institutions in art. 2 PRA thus seems ill-conceived.
27 This is made clear by the fact that advance directives enable "tailor-made" private provision. An advance directive does not necessarily have to cover the entire care of persons or property and can thus in fact leave it to the adult protection authority to order supplementary state measures if such become necessary. Without the supplementary state measures, such an advance directive also does not achieve the same intensity of intervention as a comprehensive guardianship. According to the explanations in the preceding paragraph, such an advance directive should not be sufficient to justify exclusion from the right to vote.
28 The advance directive can only become effective when the adult protection authority has determined that its preconditions have been met. One of the preconditions is the incapacity of the person concerned to judge in the defined legal area, which must in principle be determined by the adult protection authority. Although this incapacity must be of a certain minimum duration (a few hours are not sufficient), a permanent incapacity as mentioned in art. 398 para. 1 CC is not required.
D. Permanent incapacity
29 From the point of view of adult protection law, permanent incapacity to judge is a possible circumstance in which a person is considered to be in particular need of assistance within the meaning of art. 398 para. 1 CC and thus the prerequisite for comprehensive assistance may exist. Permanent incapacity to judge is therefore not a prerequisite for comprehensive guardianship (n. 16 above). Similarly, an advance directive can only become effective if the adult protection authority determines that the person concerned has become incapable of judgement. However, the incapacity to judge need not be permanent even for the validity of the advance directive (above n. 23). In order to be excluded from the right to vote under art. 2 PRA, however, a person must be permanently incapacitated, in contrast to the institutions of adult protection law.
30 A person is incapable of judgement if he or she lacks the capacity to act rationally (cf. art. 16 CC). On the one hand, capacity to judge presupposes a certain degree of intellectual insight, rational judgement and thus reasoning ability (capacity for insight). On the other hand, based on this insight, the person must be able to form a will and to act in accordance with this will (capacity to form and implement a will). The capacity to judge must always be assessed in relative terms, i.e. according to the specific point in time and the specific legal transaction. In the case of adults, capacity is generally presumed. On the other hand, art. 16 CC provides for certain conditions in which, on the contrary, incapacity to judge is presumed (such as infancy or mental disability).
31 While incapacity is to be assessed relatively and therefore does not have to be permanent, a person may only be excluded from the right to vote under art. 2 PRA if he or she is "permanently" incapacitated. Permanent incapacity is also mentioned in art. 398 para. 1 CC, but there only as a possible case in which a person may (but need not) be in particular need of assistance. According to some doctrine, incapacity is permanent if it cannot be expected that the person will regain capacity. Another part of the doctrine, however, does not want to understand permanent as "lifelong", since a person can regain the capacity to judge in the case of a treatable mental illness, for example. According to both doctrines, the probability that the incapacity to judge will last and thus a prognosis about the duration and course of the corresponding condition of a person seems to be relevant. This makes the concept of permanent incapacity problematic, as such prognoses are hardly possible.
E. Significance for exclusion from the right to vote under art. 2 PRA
32 As shown above, the grounds for exclusion from the right to vote have become increasingly narrow over time. Today, the only persons who can be excluded from the right to vote are those who are under comprehensive guardianship due to permanent incapacity or who are represented by a person authorised to make provisions. Article 2 of the PRA does not address the question of how persons under comprehensive guardianship or represented by a guardianship representative are excluded from the right to vote.
33 If a person is placed under comprehensive guardianship, the adult protection authority will in future notify the civil registry office and the communal authorities at the place of residence by law; the latter will keep the commune's electoral register. Under the new law, it is no longer relevant for the notification whether the comprehensive guardianship was established due to permanent incapacity, whereas previously only guardianships established due to permanent incapacity were notified. The communal authorities can therefore no longer determine beyond doubt from the report of the adult protection authority whether the person was placed under comprehensive guardianship because he or she is permanently incapable of judgement or whether there is another reason for this. However, permanent incapacity is still required for exclusion from the right to vote, as only this can justify exclusion from the right to vote according to the express wording of art. 2 PRA.
34 One of the reasons why the revision has not yet entered into force is that the Federal Council has to issue an ordinance under the new law on information on adult protection measures. It conducted a consultation on the preliminary draft of this ordinance in 2019, which led to controversial results. For this reason, the Federal Council is now proposing that the revised provisions on the notification of adult protection measures enter into force on 1 January 2024 without an accompanying ordinance and that the corresponding provisions in the CC be deleted even before they have entered into force. In terms of content, the Federal Council considers the ordinance to be unnecessary because the Conference for the Protection of Children and Adults (KOKES) has in the meantime issued recommendations on the provision of information on adult protection measures.
35 From the point of view of the authorities, it would be desirable for the adult protection authority to record the permanent incapacity in the disposition, but this would have an unnecessarily stigmatising effect from the point of view of the person concerned. In such a case, the authority would also have to reconsider the decision if the incapacity was no longer permanent but the comprehensive guardianship remained in place. For reasons of proportionality, the doctrine also calls for a narrow interpretation of the notification obligations.
36 Since the comprehensive guardianship is intended to be a last resort, persons who are permanently incapacitated can also be under other guardianships and in this case are not excluded from the right to vote. The fact that the legislature requires a connection between the measure of comprehensive guardianship and permanent incapacity leads to unequal treatment, which cannot be objectively justified, in view of the flexibilisation that the reform of adult protection law has made possible with regard to official measures. On the one hand, persons who are permanently incapacitated are not always under comprehensive guardianship, and on the other hand, persons who are comprehensively guardianed are not always permanently incapacitated.
37 The permanent incapacity must also relate to the exercise of the right to vote, which the municipal authorities would have to examine in the specific individual case, if the adult protection authority has not already done so. An automatism would certainly violate art. 29 of the Convention on the Rights of Persons with Disabilities; however, it is unclear whether this convention is directly applicable. The UN Committee on the Rights of Persons with Disabilities, which is responsible for examining reports on the implementation of the CRPD, even considers any exclusion of persons from the right to vote on the basis of disability to be contrary to the Convention. In its current report, it called on Switzerland to abolish all regulations that deny disabled persons their political rights.
38 Article 2 of the PRA must be interpreted by the Confederation in conformity with the Constitution and international law, which would at least require that the competent authorities, within the meaning of article 29 of the CRPD, examine whether the permanent incapacity also relates to the exercise of political rights before excluding a person from the right to vote. The cantonal regulations that provide for a special procedure for excluding a person from the right to vote are therefore to be welcomed (cf. n. 13 f. above). In its report on disability policy, the Federal Council dealt with reforms to make it easier for persons with disabilities to participate in the political process, but the national government did not address the problem of the automatic exclusion of persons with comprehensive assistance. It was not until two parliamentary initiatives that the Federal Council decided to examine this issue in greater depth, also in view of the fact that comprehensive assistance is ordered with varying frequency in the different language regions.
39 The ECHR also requires a case-by-case examination of an exclusion from the right to choose, based on article 3 of the First Additional Protocol. However, Switzerland has not ratified this protocol, which is why the corresponding practice of the ECtHR is not binding on Switzerland.
The author would like to thank Beat Kuoni for his review of the text and valuable comments.
Materials
Botschaft des Bundesrates an die Bundesversammlung zu einem Bundesgesetz über die politischen Rechte vom 9.4.1975, BBl 1975 I 1317 (zit. Botschaft BPR 1975).
Botschaft zur Änderung des Schweizerischen Zivilgesetzbuches (Erwachsenenschutz, Personenrecht und Kindesrecht) vom 28.6.2006, BBl 2006 7001 (zit. Botschaft Erwachsenenschutz).
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