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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. Politically disputed municipal citizenship rights
1 The background to the political disputes about political domicile and thus the right to vote in a community is the differentiation of citizenship rights since the Reformation, because historically the right to vote was linked to citizenship rights. During this time, the communal citizenship right and the land rights developed, which corresponded to today's cantonal citizenship right. Since the two rights had different prerequisites and different reasons could lead to their loss, citizens did not necessarily have both rights at the same time. This differentiation was intensified from the 17th century onwards, when the municipalities began to seal themselves off against accepting foreigners. On the one hand, this was because citizenship was increasingly understood as akin to ownership and, on the other, because the home principle had become established in the care of the poor. In this way, people with different residence titles and rights lived in one community. Justice co-operatives exercised political rights, while Hintersassen or Landsassen were entitled to use the communal property, but had no political rights. Hintersassen had been resident in a municipality for a long time, but did not have citizenship of the municipality. Landassen had cantonal citizenship but no municipal citizenship, and in towns a distinction was often made between major and minor citizenship, the latter conferring only limited rights.
B. Gradual convergence of federal and cantonal voting rights
2 In keeping with its liberal orientation, the FC 1848 introduced fundamental freedom of establishment for Swiss citizens of Christian denomination. However, the FC 1848 did not yet oblige the cantons to also grant settled Swiss citizens political rights in their municipality of residence. The freedom of settlement for Swiss of the Jewish faith was not realised until a partial revision of the FC in 1866. On the same voting date, however, two constitutional revisions failed, which wanted to grant the settlers political rights at communal level as well. It was not until the FC of 1874 that the cantons were finally obliged to grant settled Swiss citizens political rights at the communal level, which led to the differentiation of political communes and citizens' communes. From then on, the citizens' communes administered the citizens' property and could continue to treat non-citizens differently.
3 Art. 3 PRA has its first predecessor provision in Art. 4 of the Federal Act on the Election of Members of the National Council of 21 December 1850. According to that provision, voters were to exercise their right to vote where they lived, which meant that the principle of residence had applied to political rights at federal level since the beginning of the federal state. The place of residence was the place where the Swiss had their normal place of residence. Historically, domicile as an institution under civil law had gradually decoupled from the police settlement or residence permit. Since 1850, federal law had based political residence on the criterion of ordinary residence under civil law, although at that time no uniform concept of residence under civil law had developed. However, based on the guarantee of the debtor's place of jurisdiction at the place of residence (Art. 59 FC 1874), the Confederation had since 1874 developed customary law rules on domicile modelled on the French Code civil, which were first enshrined in law in Art. 3 of the Federal Act on the Civil Law Relations of Settled Persons and Residents of 25 June 1891.
4 With the Federal Act of 19 July 1872 on Federal Elections and Votes, the federal legislature specified the political domicile, according to which every Swiss citizen exercised his or her right to vote where he or she "resides as a local citizen or as a settled or resident person". A formal criterion was now added to the civil law criterion of residence, namely that of a police residence title, whereby cases were still conceivable in which Swiss citizens could establish political residence without possessing one of these residence titles. Settlement and residence permits were police permits, but at that time Swiss citizens were generally entitled to them. This residence title nevertheless had to be proven. In order to exercise cantonal and communal voting rights, the cantons could also make settlement a requirement.
5 Since these provisions only referred to federal elections and votes, the total revision of the FC in 1874 did not require any adjustment of the relevant provision of the law. It was not until 1951 that the federal legislature clarified the modalities of political domicile, according to which a person capable of voting acquires political domicile in federal matters at his place of residence, provided he does not have stronger ties to another place and if he has deposited his certificate of domicile at least ten days before the vote. Art. 3 PRA, which was introduced in 1976 and has remained unchanged since, essentially adopted this provision. Today, the waiting period is the subject of Art. 4 PRA (in the form of a registration deadline).
II. Significance of the provision
A. General
6 The principle of residence is also referred to as the democratic territoriality principle, which is intended to ensure that the political will of voters is attributed to the territorial authority to which they belong and by whose decisions they are most likely to be affected.
7 Political domicile is a federal constitutional concept (Art. 39 para. 2 FC), which is concretised by Art. 3 FC. The cantons have adopted this concept, which means that today there is a uniform concept of political domicile in the Confederation.
8 At the same time, political domicile guarantees that the state organ, the people, is properly composed. This is an entitlement that is part of the freedom to vote and to be elected under Art. 34 FC and is intended to prevent "voting tourism", i.e. the temporary transfer of residence to another community in order to become entitled to vote there.
9 However, Art. 3 PRA also serves to concretise Art. 39 para. 3 FC by ensuring that a person has only one political domicile and can thus exercise his or her political rights in only one place. In addition to the actual civil law criterion of domicile, a formal registration is therefore necessary to establish political domicile, which was previously usually done by depositing the certificate of domicile, whereupon the person is entered in the electoral register. However, the certificate of domicile became superfluous due to a revision of the law on civil status and the land register in 2019 (cf. n. 22 below).
10 As a rule, the civil-law domicile of a person entitled to vote coincides with his or her political domicile, i.e. "where he or she resides with the intention of remaining permanently" (Art. 23 CC). According to Art. 1 VPR, exceptions may exist in particular for persons under guardianship, weekly residents and spouses.
11 Furthermore, for the voting rights of the Swiss abroad, a fiction is necessary with regard to their domicile, because this is in the state of residence. This exception is based on Art. 40 para. 2 FC and provides that Swiss abroad exercise their right to vote in their last municipality of residence or their home municipality (Art. 18 ASG). Due to the principle of democratic territoriality, the right of the Swiss abroad to vote is not a matter of course and is criticised in the doctrine.
B. Legal comparison
12 The residence requirement has a different meaning at federal and cantonal level.
13 The subjective right to vote does not depend on the place of residence with regard to political rights at federal level. If the requirements for the right to vote are met (Art. 136 FC), the person must be entered in the electoral register of the commune of residence (Art. 3 para. 1 PRA). The significance of the political domicile in this respect is merely a procedural one, according to which persons entitled to vote who are resident in Switzerland "exercise" their political rights at that place. Art. 18 ASG provides for special provisions for Swiss abroad. Likewise, according to Art. 3 para. 1 PRA, Travellers vote in their home commune (cf. n. 18 ff. below). Political rights are only exercised at this place (Art. 39 para. 3 FC). The exercise of the right to vote is also influenced by this place, in that, for example, for participation in National Council elections, it is relevant in which canton the political domicile is located (cf. Art. 149 para. 2 FC).
14 At the cantonal level, political domicile has an additional significance in addition to its procedural function, since cantonal and communal political rights depend on domicile in the canton and the corresponding commune. Political domicile is thus generally a subjective prerequisite for the right to vote. However, the cantons are free to decide whether they wish to grant the Swiss abroad the right to vote in cantonal and communal matters and thus a corresponding exception to the requirement of residence. Art. 39 para. 3 FC, on the other hand, prohibits the cantons from granting persons with political domicile in other cantons the right to vote in the canton. As a principle of unity of political domicile, this also applies at communal level and – in order to prevent the multiple exercise of the right to vote on the same matter – also at federal level.
15 Although it is argued in the doctrine that the cantons could create a cantonal-law concept of political domicile based on Art. 39 para. 1 FC, a different concept could cause difficulties in practice. For the determination of political domicile, the cantons explicitly refer to the PRA or adopt the corresponding terminology.
III. Commentary on the text of the norm
A. Definition of political domicile (para. 1)
1. Political domicile
16 The PRA defines the place of residence relevant for voting, which is referred to as political residence. For this purpose, political domicile is fundamentally linked to the criteria of domicile under civil law pursuant to Art. 23 of the Civil Code, which the law indicates with the term "where the person entitled to vote resides". The dispatch mentions the two civil law criteria of actual and sole residence (objective requirement) and intention to remain permanently (subjective requirement). A person establishes residence as soon as he or she actually stays in a place. In order to establish residence, he or she must also have the intention to remain permanently in that place.
17 These requirements under civil law are now extended by a formal and objective criterion: registration with the competent authority. The embassy cites as a reason for this the fact that the definition of residence under civil law is not sufficient for certain cases such as separated wives, weekly residents and students. From the point of view of civil law, the cases mentioned are cases in which residence can be disputed for various reasons. The legislator apparently does not want to tolerate this uncertainty in the case of political domicile and therefore requires, as an additional prerequisite, registration with the competent authority by depositing the documents. Contrary to this argumentation, the Federal Council emphasises in its dispatch that the deposit of the certificate of domicile alone is not sufficient and that the requirements under civil law must also be met. In the cases mentioned, the uncertainty surrounding political domicile thus remains.
2. Travellers
18 Switzerland's treatment of Travellers is a dark chapter in the history of the federal state. There was an early connection between non-settlement and a lack of citizenship rights. The early federal state set out to naturalise people without citizenship rights (homeless people) and, in this context, to force Travellers (then called vagrants) to adopt a sedentary lifestyle as early as the 19th century, sometimes by depriving them of their children. This procedure was continued until 1973 with the "Hilfswerk Kinder der Landstrasse" programme.
19 A de facto pressure towards a sedentary lifestyle was also maintained until 1994 with regard to voting rights. Since the right to vote had always been linked to a political domicile, the authorities long took the view that if Travellers did not actually have a political domicile, they could not have the right to vote. This formalistic view only gave way to political efforts to right the wrongs done to Travellers. And it was not until 1994 that the revised Art. 3, para. 1 PRA finally came into force, enabling Travellers to exercise their voting rights in their home commune, in analogy to the Swiss abroad. The unequal treatment of the Swiss abroad, who have been able to exercise their right to vote in federal matters since 1975 without having a place of residence in Switzerland, seems particularly objectionable.
20 The term "Traveller" is not defined in detail by the law or the Dispatch. The systematic context shows that Travellers are characterised by the fact that they do not have a permanent place of residence. They may live in a place temporarily, but they have no intention of staying there permanently. Travellers within the meaning of the law are Swiss citizens. As such, they have the citizenship of a Swiss municipality and also exercise their right to vote in this home municipality in accordance with Art. 3 para. 1 sentence 2 PRA.
21 In the case of Travellers who also travel abroad, the distinction from the status of Swiss Abroad does not seem clear-cut, because for an entry in the Register of Swiss Abroad it is sufficient not to have a domicile in Switzerland as a Swiss national and merely to have established "residence" at a place abroad. In Switzerland, residence refers to the objective requirement of being in a place, without the subjective element of remaining permanently in that place.
B. Certificate of origin and other identity documents (para. 2)
22 The Heimatschein was previously the citizenship document for Swiss nationals in Switzerland. This must still be deposited in most cantons at the place of residence. In order to register at another place of residence, the municipality of settlement then issues a certificate of domicile or an interim certificate. Home residence permit and interim residence permit are cantonally different designations for residence permits. In particular, weekly residents require such a residence permit at their place of residence, while their political domicile remains at the place where they deposited their residence permit, which means that they continue to exercise their voting rights there.
23 When the PRA was enacted, the Federal Council justified Art. 3 para. 2 PRA as a special provision for separated spouses, since until the revision of the marriage law the separated spouse did not have an independent residence permit with which she could have been entered in the electoral register at her new place of residence. Today, the domicile of spouses is assessed separately for each spouse, which means that the provision has lost its original meaning. Nevertheless, Art. 3 para. 2 PRA opens up the possibility for a person to be entered in the electoral register even without depositing the certificate of domicile if he or she can prove that he or she is not entered in the electoral register at any other place. However, the practical significance of this possibility seems very small.
24 The provision of Art. 1 lit. c PRA, according to which the political domicile of a spouse may deviate from the civil domicile under certain circumstances, does not constitute a case of Art. 3 para. 2 PRA. This provision is one of the exceptional cases in which civil and political domicile may differ, as may also be the case with weekly residents or guardians.
25 The significance of the certificate of domicile will also continue to decline. Since 1980, the family register has formed the basis for the certificate of origin. With the enactment of the Civil Status Ordinance in 2004, the certificate of origin was defined as a civil status document. Since a revision of the civil status and land registry law in 2019, the municipalities have been given access to the data of the civil status register in order to keep their registers of residents. The certificate of domicile will thus become superfluous and a number of cantons have since also no longer required a certificate of domicile when registering for settlement or residence. However, cantonal law still determines which documents must be presented when registering, and the cantons must first set up technical access for electronic searches of the civil status register.
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. April 1975, BBl 1975 I 1317 (zit. Botschaft BPR 1975).
Botschaft über eine Teiländerung der Bundesgesetzgebung über die politischen Rechte vom 1. September 1993, BBl 1993 III 445 (zit. Botschaft BPR 1993).
Bibliography
Argast Regula, Staatsbürgerschaft und Nation: Ausschließung und Integration in der Schweiz 1848–1933, Göttingen 2007.
Baumann-Bruckner Marie Louise, Stimmrecht und Volksabstimmungen, in: Yvo Hangartner (Hrsg.), Das Bundesgesetz über die politischen Rechte, Referate des Verwaltungskurses vom 14. Oktober 1977 an der Hochschule St. Gallen, St. Gallen 1978, S. 39–64.
Biaggini Giovanni, Bundesverfassung der Schweizerischen Eidgenossenschaft, Kommentar, 2. Aufl., Zürich 2017.
Bisaz Corsin, Direktdemokratische Instrumente als «Anträge aus dem Volk an das Volk»: Eine Systematik des direktdemokratischen Verfahrensrechts in der Schweiz, Zürich et al. 2020.
Bucher Eugen, Berner Kommentar, Zivilgesetzbuch, Art. 11–26 ZGB, Die natürlichen Personen, Persönlichkeit im Allgemeinen, 3. Aufl., Bern 1976 (zit. BK-Bucher).
Burckhardt Walther, Kommentar der schweizerischen Bundesverfassung vom 29. Mai 1874, 3. Aufl., Bern 1931.
Dubler Anne-Marie, «Fahrende», Historisches Lexikon der Schweiz (HLS), Version vom 3.10.2013, https://hls-dhs-dss.ch/de/articles/025616/2013-10-03/, besucht am 28.9.2022.
Fleiner Fritz/Giacometti Zaccaria, Schweizerisches Bundesstaatsrecht, Zürich 1949.
Glaser Andreas/Lehner Irina, Moutier, quo vadis? Die Aufhebung der Volksabstimmung über den Kantonswechsel, AJP 2019, S. 452–462.
Hangartner Yvo, 1798–2000 und ?: Der lange Weg zum allgemeinen Stimmrecht, in: Festgabe zum 65. Geburtstag von Claudia Soliva, Zürich 1994, S. 127–145.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Kley Andreas, Kommentierung zu Art. 39 und Art. 136 BV, in: Ehrenzeller Bernhard/Mastronardi Philippe/Schweizer Rainer J./Vallender Klaus A. (Hrsg.), St. Galler Kommentar, Die Schweizerische Bundesverfassung, 2. Aufl., Zürich et al. 2008 (zit. SGK-Kley).
Landolt Oliver, Von der Marginalisierung zur Kriminalisierung – Die Ausgrenzung mobiler Bevölkerungselemente in der spätmittelalterlichen Eidgenossenschaft, Das Mittelalter, 16 (2011), S. 49–71.
Leimgruber Walter/Meier Thomas/Sablonier Roger, Das Hilfswerk für die Kinder der Landstrasse, Bern 1998.
Marti Arnold, Entwicklung und heutiger Stand des Einwohnerkontroll- und -meldewesens in der Schweiz – weitreichende Veränderungen durch das Registerharmonisierungsgesetz des Bundes, ZBl 120 (2019), S. 591–613.
Meier Thomas Dominik/Wolfensberger Rolf, «Eine Heimat und doch keine»: Heimatlose und Nicht-Sesshafte in der Schweiz (16.–19. Jahrhundert), Zürich 1998.
Rieser Walther, Das Schweizerbürgerrecht: Eine staatsrechtliche Studie (Separatdruck aus der «Zeitschrift für schweizerische Statistik»), Bern 1892.
Seferovic Goran, Das Schweizerische Bundesgericht 1848–1874: Die Bundesgerichtsbarkeit im frühen Bundesstaat, Zürich 2010.
Sieber Basil, "Bürgergemeinde", Historisches Lexikon der Schweiz (HLS), Version vom 16.2.2005, https://hls-dhs-dss.ch/de/articles/026443/2005-02-16/, besucht am 25.9.2022.
Spühler Karl, Die Rechtsprechung zur polizeilichen Meldepflicht bei Niederlassung und Aufenthalt, ZBl 93 (1992), S. 337–344.
Staehlin Daniel, Kommentierung zu Art. 23 ZGB, in: Geiser Thomas/Fountoulakis Christiana (Hrsg.), Basler Kommentar, Zivilgesetzbuch I, 6. Aufl., Basel 2018 (zit. BSK-Staehlin).
Stahel Arnold, Gemeindebürgerrecht und Landrecht im Kanton Zürich, Zürich 1941.
Tschannen Pierre, Kommentierung zu Art. 39 und Art. 40 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.) Basler Kommentar, Bundesverfassung, Basel 2015 (zit. BSK-Tschannen).
Wolfensberger Rolf, «Heimatlose», Historisches Lexikon der Schweiz (HLS), Version vom 5.12.2007, https://hls-dhs-dss.ch/de/articles/016093/2007-12-05/, besucht am 13.1.2023.