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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
- Bibliography
I. History of origins
1 The Federal Law on the Election of the National Council of 14 February 1919 [NWG] already contained a provision on the competence to draw lots. Art. 28 of the National Council Act read: "If the law prescribes the drawing of the lot, it shall be carried out by the President of the cantonal government under the control of the latter. Art. 23 is reserved." The reservation in Art. 23 NWG regulated that the Federal Council was responsible for the drawing of lots in cases where the election fell on the same person in several constituencies and the person elected more than once did not declare in which constituency he accepted the election.
2 When creating the PRA, the Federal Council proposed a modified adoption of Art. 28 NWG. Instead of directly stating who is responsible for drawing lots, as in Art. 28 NWG, Art. 20 PRA only stipulates which authority is responsible for ordering the drawing of lots in each case. The new Art. 20 PRA was justified in the Federal Council's dispatch with only one sentence: "This article regulates quite generally the procedure for decisions by drawing lots." The National Council and the Council of States adopted the legislative text proposed by the Federal Council without discussion.
II. Significance of the provision
A. General
3 Art. 20 PRA is a classic norm of competence. The provision regulates which authority is competent to order the drawing of lots, should the drawing of lots occur in the cases provided for by law. However, the cases in which the lot is to be drawn do not result from Art. 20 PRA. Cases in which the drawing of lots is to be applied can be found in Art. 17 lit. c, Art. 41 par. 1 lit. f, Art. 43 par. 3 and Art. 47 par. 1 sentence 3 PRA.
B. Comparison of Laws
4 All cantons provide for a competence norm in their cantonal decrees concerning political rights for the elections to be organized according to cantonal law, which in each case designates one or more authorities for the drawing of lots. Unlike the Confederation, the cantons do not simply designate the authority responsible for ordering the drawing of lots, but rather the authority that is actually to draw the lots. In most cases, the authority in charge of the election or the supervisory authority or its presiding member, its clerk, its weibelin or a person of trust is responsible for the drawing of lots. The responsibility in the cantons of Jura and Ticino is somewhat unusual: In the canton of Jura, the lot is drawn by the president of the cantonal court (Tribunal cantonal). In the canton of Ticino, in certain cases regulated by law, the lot is drawn by the Ufficio cantonale di accertamento, which consists of three judges of the cantonal court of appeal (Tribunale di appello).
5 The cantonal rules on the drawing of lots usually stipulate that the drawing of lots must take place in the presence of the candidates concerned or their representatives or that they must at least be invited to do so. In addition, the cantonal norms occasionally stipulate that the drawing of lots must be carried out manually, that other members of the authorities must be present at the drawing and that minutes must be kept of the drawing of lots.
6 As a curiosity, a provision from the canton of Schaffhausen concerning the competence of the drawing of lots in the case of a so-called "over-election" is to be highlighted: If, in an election by majority vote, more persons have obtained an absolute majority than there are positions to be filled, and if there is a tie between the persons, the lot drawn by the candidates shall decide.
III. Commentary on the text of the norm
A. Content of the Norm
7 Art. 20 PRA regulates in general terms which authority is responsible for ordering the drawing of lots. If a decision by lot is necessary at the cantonal level, it is ordered by the cantonal government. Decisions by lot at the cantonal level are provided for in the following cases regulated by law:
Art. 41 para. 1 lit. f PRA: in the event of an equal number of votes in the further distribution of mandates among the lists (proportional representation).
Art. 43 para. 3 PRA: in the event of a tie in the determination of the elected and the substitutes in the event of a tie (proportional representation)
Art. 47 para. 1 PRA: in the event of a tie (majority voting)
8 If lots must be drawn at the federal level, this shall be done by order of the Federal Council. The PRA provides for only one case in which the Federal Council could order a drawing of lots, in the so-called remaining distribution of the 200 seats of the National Council among the cantons (Art. 17 lit. c PRA).
B. Clarifications of the norm by BGE 138 II 13
9 In its judgment of 23 November 2011 concerning the election to the National Council in the Canton of Ticino, the Federal Supreme Court dealt in more detail with the drawing of lots pursuant to Art. 43 para. 3 PRA in conjunction with. Art. 20 PRA. In the National Council elections of 23 October 2011 in the Canton of Ticino, on the list "Partito Popolare Democratico + Generazione Giovani (PPD + GG)" both Marco Romano and Monica Duca Widmer obtained exactly 23,979 votes. Since, according to the mandate distribution, only one of the two persons could receive a mandate, a lot had to be drawn in accordance with Art. 43 para. 3 PRA. The "lot" was "drawn" by the semi-automated IT program used in the Canton of Ticino for counting the votes and publishing the results. The computer chose Monica Duca Widmer as National Councilor.
10 In its ruling on this drawing of lots, the Federal Supreme Court laid down various requirements for a drawing of lots and thus also specified, among other things, Art. 20 PRA: It held that the drawing of lots must necessarily be carried out by the cantonal government itself or by an authority commissioned by the cantonal government. The subsequent approval of a drawing of lots carried out by an authority that is not competent does not satisfy the legal requirements. Since election and voting procedures using technical aids require the approval of the Federal Council pursuant to Art. 84 para. 2 PRA, the use of a semi-automated IT program without Federal Council approval is not permitted. In the opinion of the Federal Supreme Court, the use of electronic aids in the drawing of lots does not provide a sufficient guarantee of equal probability of the candidates being drawn (50% to 50%), which also violates the equality of opportunity of all candidates resulting from the freedom of election and voting (Art. 34 para. 2 FC). In addition, the drawing of lots was carried out before the necessary verification that there were no doubts as to the correctness of the election result, and thus came into play prematurely. The Federal Supreme Court dismissed another complaint that was directed against the repeated drawing of lots and explicitly refrained from imposing any further requirements on the process of drawing lots in addition to the detailed requirements described above, namely on the way in which the lots are mixed, the nature of the lot containers or the blindfolding of the person drawing the lot.
11 The drawing of lots in the Ticino case had to be repeated on the instruction of the Federal Supreme Court, which ordered for the specific individual case that the repetition of the drawing of lots, which had to be carried out manually, had to take place publicly by a member of the cantonal government or a delegation that did not belong to the Partito Popolare Democratico. The representatives of the political parties and the two candidates concerned had to be invited to the drawing of lots. The repeated drawing of lots took place on November 25, 2011. The draw fell on Marco Romano, who therefore became a member of the National Council. The Federal Supreme Court left open whether these additional requirements for the drawing of lots in the individual case of Ticino must be regarded as prerequisites for a valid drawing of lots. For reasons of legal certainty, however, it is recommended that these additional requirements also be observed in future lot drawings.
I would like to thank Benjamin Böhler, assistant professor at the Center for Democracy Aarau, for his help in researching the material and for his valuable comments in reviewing the text.
Bibliography
Biaggini Giovanni, «…, so entscheidet das Los», ZBl 113 (2012), S. 389–390.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Glaser Andreas, Die Rechtsprechung des Bundesgerichts zu den politischen Rechten auf Bundesebene, ZBl 118 (2017), S. 415–436.
Tornay Schaller Bénédicte, Le recours au Tribunal fédéral en matière d’élections fédérales, AJP 2017, S. 351–362.
Weber Anina, Schweizerisches Wahlrecht und die Garantie der politischen Rechte, Eine Untersuchung ausgewählter praktischer Probleme mit Schwerpunkt Proporzwahlen und ihre Vereinbarkeit mit der Bundesverfassung, Zürich 2016.