-
- 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 origin
- II. Significance of the provision
- III. Commentary on the text of the provision
- Bibliography
I. History of origin
1 The provision has no predecessor in the National Council Elections Act (NWG) 1919. It was not yet included in the Federal Council's draft for the PRA 1976, but goes back to a proposal by the responsible committee of the National Council, which was adopted in plenary without discussion. The Council of States also approved it without discussion. As part of the 2014 revision, the wording of the reference to Art. 29 para. 4 was formally amended. This amendment was again not based on a draft by the Federal Council, but on a motion by the Political Institutions Committee, which was adopted without discussion in the National Council and also followed without discussion by the Council of States.
2 The reason for the first regulation of the use of votes in favor of deceased persons was two cases in the 1975 National Council elections in the cantons of Bern and Solothurn, where candidates had died between the printing of the ballot papers and the election date. The explicit standardization of the legal consequences was intended to eliminate the legal uncertainty that had arisen among voters and the authorities. The vote cast for the deceased person could not be declared invalid due to a lack of presumed knowledge on the part of the voters. However, it remained unclear whether and in what form the de facto worthless vote could be attributed to the list in question.
II. Significance of the provision
A. General
3 The provision regulates a special constellation within the system of individual vote competition. Candidate votes form the main part of the party votes that are decisive for the allocation of mandates to the lists. Candidates who die in the period between the lists being drawn up and the National Council election can no longer be effective beneficiaries of candidate votes and therefore, in principle, cannot provide any party votes. Even without the provision in Art. 36, votes in their favor would probably flow to the elected list in the form of additional votes as party votes (Art. 37 para. 1 sentence 1 PRA). Exceptionally, however, votes in favor of deceased persons would be forfeited as blank votes if there is no list designation, either because a ballot paper without a pre-printed form was used and no list was designated, or because the list designation was deleted from a ballot paper with a pre-printed form (Art. 37 para. 1 sentence 2 PRA).
4 In most cases, the other regulations would already lead to a utilization of the votes, which is likely to be in the interests of the voters. In this respect, Art. 36 PRA expressly confirms that votes for deceased persons are counted as candidate votes and thus benefit the list of deceased candidates as party votes.
5 Art. 36 PRA also has its own regulatory content in the event that the voter has voted for a person who has since died. Without a special provision, the vote in favor of a deceased person would possibly go to the designated list. Whether this corresponds to the presumed will of the voters cannot be clearly determined. This could be supported by the fact that a specific person was explicitly selected from another list. If this person can no longer be effectively elected, the vote should flow to the originally elected list as an additional vote and thus as a party vote. However, the law makes the opposite assumption in Art. 36 PRA. The vote is fictitious as a candidate vote for the deceased person and therefore as a party vote in favor of the list of the panachee. As a result, the vote is cast in favor of the best-elected candidate on the list of the variegated candidates. Ultimately, the voter has only voted for the party of the deceased, as the deceased person was no longer eligible. It seems doubtful whether this does justice to the presumed will of the voters. However, the statutory solution consistently continues the effect of the panache votes in favor of the other list and is not objectionable from a constitutional point of view.
6 Art. 36 PRA is also relevant in the event that the voter uses a ballot paper without a form and does not enter a list designation. The provision means that the (invalid) vote in favor of the deceased person is not forfeited, but is deemed to be a candidate vote and thus counted as a party vote. Even in this constellation, it is questionable whether voters who expressly create an individually composed list want to support the deceased person's list with their vote. In this respect too, however, the provision is the logical consequence of the effect of candidate votes in favor of the respective list.
B. Comparison of laws
7 Many cantons do not expressly regulate the constellation of the death of a candidate between the cleansing of the lists and the election date. Insofar as the cantons do make a provision, this corresponds to Art. 36 PRA. In the cantons of Bern, Solothurn, St. Gallen and Vaud, votes for candidates who have died since the nominations were cleared are expressly counted as candidate votes.
8 In cantons without explicit regulations, votes for deceased persons are also likely to be counted as candidate votes for the respective list in practice. For example, on 19 November 2018, the State Council of the Canton of Valais made a clarification in the event of the death of a candidate for the Constitutional Council in view of the election of the Constitutional Council on 25 November 2018. Among other things, the State Council stated: "The votes cast for a candidate who died before the election are valid and will be counted as such by the counting office. If a deceased candidate is among those elected on the evening of the election, his or her place is taken by the first non-elected candidate". In the canton of Lucerne, Art. 36 PRA was applied analogously in the 2019 cantonal council elections with regard to dealing with the death of a candidate.
III. Commentary on the text of the provision
9 The scope of application of the provision covers the situation in which a candidate dies between the time when the lists are cleared in accordance with Art. 29 para. 4 sentence 1 and sentence 3 PRA, i.e. the second Monday after the closing date for registering to stand for election or, under deviating cantonal law, the first Monday after the closing date, and the day of the National Council election (cf. Art. 19 PRA). Cantonal law stipulates a Monday in August of the election year as the last date for the closing date for registering to vote (Art. 21 para. 1 PRA).
10 The deceased person must have been eligible for election to the National Council at the time the lists were cleared in accordance with Art. 143 FC. Although the deceased person was no longer eligible at the time of the election, a vote in their favor is not invalid (see Art. 38 para. 1 PRA). However, the deceased person can neither be an elected person nor a substitute (cf. Art. 43 PRA). Art. 36 PRA regulates how the vote for a deceased person is to be handled.
11 Art. 36 PRA stipulates that a vote for a person who is deceased at the time of the election is "counted" as a candidate vote. As a result, the vote is included in the total number of party votes for the list in question (Art. 39 lit. e PRA). The regulation thus corresponds functionally to the figure of the additional vote. The list benefits from a vote that is not covered by a vote for an eligible person.
Bibliography
Muheim Anton, Wahl des Nationalrates, in: Hangartner Yvo (Hrsg.), Das Bundesgesetz über die politischen Rechte, St. Gallen 1978, S. 65 – 89.