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- Art. 5a FC
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- Art. 43a FC
- Art. 55 FC
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- 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
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- Art. 50 CO
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- 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
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- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
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- Art. 37 PRA
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- Art. 39 PRA
- Art. 40 PRA
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- 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
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- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
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- Art. 47a FADP
- Art. 48 FADP
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- Art. 50 FADP
- Art. 51 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
1 The first attempt at a nationwide regulation of the registration of persons entitled to vote dates back to the Helvetic era: the First Helvetic Constitution of April 12, 1798, stipulated that every citizen of twenty years of age must "be enrolled in the civic register of his canton" (Art. 24). From that time on, the citizen received the right to vote in a primary or electoral assembly (Art. 28).
2 After the establishment of the federal state, the question of regulating the electoral register on a nationwide level became virulent again. The draft law of January 20, 1850, on the election of members of the National Council provided for the maintenance of a register of "citizens capable of voting" in the communes. However, the provision was not included in the law enacted on December 21, 1850.
3 In the first decades of the new federal state, a not insignificant number of citizens in the cantons found it difficult or even impossible to be entered in the electoral register and thus also to participate in federal votes. The reasons for this included the fact that the cantons at the time had different requirements for proof of eligibility to vote and that in some cantons the electoral registers were closed earlier for Swiss citizens from outside the canton than for native cantonal citizens. In order to eliminate this "unjustified inequality", the Federal Law on Federal Votes and Elections of 19 July 1872 established, among other things, in Art. 5 the principle that every Swiss citizen residing in a municipality shall be entered ex officio in the electoral register, provided that he or she is not excluded from active citizenship under the laws of the canton. Moreover, Art. 6 of the aforementioned federal law already contained the right to inspect the electoral register and a minimum requirement for closing the electoral register. However, the implementing regulations on the keeping of the electoral register in the cantons were inconsistent. Efforts to regulate them in a more uniform and detailed manner at the federal level were unsuccessful.
4 It was not until a good hundred years later, with the enactment of the PRA, that Articles 5 and 6 of the Federal Act on Federal Votes and Elections of July 19, 1872 were revised and transferred to Article 4 of the PRA. In contrast to the Federal Council's proposal, the Federal Assembly set a fixed date in paragraph 2 as the end date for the registration of voters. Since the PRA entered into force on July 1, 1978, the wording of Art. 4 has remained unchanged.
II. Significance
A. General
5 Art. 4 regulates the register of persons entitled to vote on federal matters. The term federal affairs covers all federal votes (Art. 140-142 FC) and the elections to the National Council (Art. 149 FC). Elections to the Council of States, on the other hand, are regulated by the cantons (Art. 150 para. 3 FC) and are therefore cantonal matters.
6 The entry in the electoral register (French translation in the Confederation: registre des électeurs, in the cantons also: registre électoral or rôle électoral) is subject to exclusion from the right to vote (Art. 2). Together with political residence (Art. 3), registration is an essential formal procedural requirement for the right to vote or to cast a vote in federal matters (Arts. 5-8). For example, only persons registered in the electoral register can vote for the National Council. For eligibility for election to the National Council, however, registration in the electoral register is not a prerequisite (Art. 143 FC e contrario). All persons entitled to vote on federal matters are eligible to vote, including Swiss citizens living abroad who are not entered in the electoral register.
7 A correctly maintained electoral register guarantees the right to the correctly composed, constitutional electoral and voting body or to the lawful voting body, as well as the associated right to exclude non-voting persons. The electoral register also serves to determine the number of voters or persons entitled to vote as well as the subsequent counting and determination of the correct result. The specifications in Art. 4 are intended to prevent manipulation and thus contribute to a flawless voting and election system. The complete keeping of the electoral register is thus a central basic requirement for ensuring a voting or election result that reflects the free and undistorted will of those entitled to vote (Art. 34 para. 2 FC). The reliability and accuracy of the voting and election process and thus also the protection of the electoral register against manipulation is also protected under criminal law (Art. 282 StGB). A correctly kept electoral register builds trust and consequently serves the acceptance of a voting or election result. The entry in the electoral register is also a prerequisite for the issuance of the certificate of voting rights and subsequently for the taking of a referendum and a popular initiative. All in all, Art. 4 contains a central procedural requirement for the exercise and guarantee of political rights in Switzerland.
B. Comparison of Laws
8 The subject of Art. 4 is the electoral register in federal matters. The cantons and the communes are responsible for regulations on the electoral register in cantonal and communal matters, subject to the minimum requirements of the Confederation (Art. 39 FC). The cantons and communes may extend political rights within their respective spheres of competence. This tripartite division means that, in addition to the register for federal voting rights, a (different) voting register may also be kept for cantonal and communal elections and votes. The regulations in the cantons on the electoral registers differ, e.g. the inspection of the electoral register is sometimes determined in a way that deviates from federal law (cf. n. 34 ff.) or the electoral register is closed at a later date.
9 The decision to dispense with more far-reaching federal provisions on the keeping of the electoral register was justified by the fact that each municipality keeps a electoral register for communal, cantonal and federal ballots also in accordance with cantonal and communal law. Uniform federal regulations would, in the opinion of the legislature, have meant duplicate maintenance of the registers and thus considerable additional expense for the communes.
10 Insofar as the PRA and the federal implementing decrees do not contain any provisions, cantonal law applies (Art. 83 PRA). The cantonal implementing decrees on Art. 4 require the approval of the federal government in order to be valid (Art. 93 PRA). In view of the different cantonal implementing provisions, various questions of interpretation arise with regard to the implementation of Art. 4 PRA (cf. in particular on the right of inspection: n. 34 ff.).
III. Voting Register
A. Paragraph 1: Registration and Amendments
1. Those entitled to vote
11 In federal matters, the right to vote is governed by Article 136 para. 1 FC. Accordingly, all natural persons who have Swiss citizenship, have reached the age of 18 and are not under comprehensive guardianship due to permanent incapacity or are not represented by a person authorized to make provisions for their children are to be entered in the federal electoral register (Art. 136 para. 1 FC in conjunction with Art. 2 PRA).
2. Political domicile
12 Entry in the federal electoral register is made at the place where the person establishes his or her political domicile. This requirement is already laid down in the Federal Constitution (Art. 39 para. 2 FC). The local determination of the registration ensures that a person cannot vote at different places at the same time. Before registration, it must be clarified in the sense of a preliminary question in which municipality the person entitled to vote lives and is registered (cf. n. 14).
13 The decisive point in time for the registration is the actual registration. Actual registration is deemed to be the deposit of the required identification documents, as a rule the certificate of residence, at the place of residence. Pursuant to Art. 3 para. 2 PRA, persons who deposit another form of identification (e.g. Heimatausweis) in a commune instead of the Heimatschein only establish political residence if they prove that they are not entered in the electoral register at the place where the Heimatschein is located. In this case, therefore, proof of the lack of entry in the electoral register at the place where the certificate of origin was deposited forms the preliminary question for establishing political domicile (cf. above) and only subsequently the basis for entry in the electoral register at the new place.
14 Due to the cumulative criteria of residence and registration, a person who is registered in a municipality but no longer lives there must be removed from the register.
15 As a rule, political residence is linked to civil residence. Under certain circumstances, however, the political domicile may differ from the civil domicile. Similarly, the place of voting entitlement cannot automatically be inferred as a specific place of residence, for example, for police purposes.
16 A separate electoral register is created for Swiss citizens living abroad, which is kept centrally in certain cantons. Persons without a fixed place of residence are entered in the electoral register of their home commune (Art. 3 para. 1 sentence 2 PRA).
3. Voting register
17 Neither the PRA nor the Ordinance on Political Rights (OPR) specify by which body or instance and in what form the register for federal voters is to be kept (e.g. physical or electronic form, alphabetical order, etc.). Accordingly, the Confederation in principle leaves the regulation of the modalities to the cantons (Art. 83 in conjunction with 91 PRA; cf. n. 10 above).
18 In the cantons, the electoral register is generally kept on a decentralized basis (in the communes) and electronically. The data from the population register are generally used to compile the electoral register. According to Art. 6 lit. t Federal Act of 23 June 2006 on the Harmonization of Population Registers and Other Official Registers of Persons, the population register must record voting and electoral rights at federal, cantonal and communal level.
19 Since 1 July 2022, the cantons have again had the option of introducing "e-voting" as part of trial operation, subject to the approval of the Federal Council. A nationwide introduction of e-voting would first require the creation of harmonized and coordinated voting registers. However, federal requirements for the maintenance of voting registers that go beyond Art. 4 have so far been largely ignored, even well over 150 years after the first efforts (see n. 3 above).
4. Registration or deletion ex officio
20 If a person fulfils the requirements for registration, he or she must be entered in the register immediately by the competent authority, subject to the closure of the electoral register (cf. n. 28 below), consequently without a waiting period and without any procedural act by the person (e.g. application). Likewise, the keepers of the electoral register are obliged to remove ex officio from the register persons who no longer meet the requirements. This means that once a person has moved away, he or she must be removed from the register and his or her data may no longer be processed. The electoral register must be constantly updated and must reflect the current status of those entitled to vote. The communes must carry out any necessary clarifications and rectify any inconsistencies in the register without delay. Official acts in connection with the electoral register shall in principle be performed free of charge (Art. 86 para. 1 PRA).
21 An appeal against the (refused) entry or deletion may be lodged with the respective cantonal government (Art. 77 para. 1 lit. a PRA). The prerequisite is the existence of a contestable ruling by the body responsible for keeping the electoral register. Derived from the claim to the correct composition of the voting body as well as the determination of the correct result of elections and votes, the right of appeal relates not only to the entry or deletion of one's own person, but also to the entry or deletion of third parties. Due to the organ function of the electoral register, it is a prerequisite that the person lodging the complaint is entitled to vote on the matter. A voting rights complaint on the grounds of a violation of Art. 4 PRA, in particular on the grounds of deficiencies in the keeping of the electoral register, may be lodged at any time and thus irrespective of a specific vote or election.
22 Responsibility for the electoral register lies with the person keeping the electoral register. As a rule, he or she is appointed by the municipality and is part of the municipal administration (executive). The person keeping the electoral register must not only make the necessary mutations on an ongoing basis (duty to keep the register), but must also, in the event of doubt, check the requirements for the deletion or inclusion of a person (duty to investigate).
23 The age of the person and proof of Swiss citizenship can usually be verified by the communes without major effort. On the other hand, political domicile may require further clarification under certain circumstances. The same applies to uncertainties regarding capacity to judge. However, the assumption of "doubtful capacity" alone must not lead to the deletion of a person. In view of the implications of the deletion and a refusal to exercise political rights, those responsible for keeping the electoral register must always rely on legally binding orders or judgments (certificates) confirming the incapacity to judge. In accordance with Art. 449c of the Swiss Civil Code, the child and adult protection authorities (KESB) are required by law to notify the civil registry office of persons excluded from voting rights, namely those with comprehensive guardianship or a validated advance directive. The subsequent deletion therefore takes place ex officio. The same applies in the case of deletion due to the death of the person concerned or in the case of entry based on attainment of majority.
24 If the deletion is intended at the request of a third party and the situation is not clear (e.g. because the relevant documents have not been produced), the authority responsible for keeping the electoral register must make the necessary inquiries and grant the person concerned a hearing beforehand (cf. in particular the challenges in the case of changes of residence, n. 33).
25 The electoral register is regarded as a document. Falsifying, falsifying, removing or destroying the electoral register is punishable (cf. Art. 282 no. 1, first sentence, SCC). Criminal liability requires intentional action and is also affirmed in the case of contingent intent.
26 The electoral register relates in particular to the preparation of elections and votes. Any irregularities discovered in the run-up to the ballot must therefore be reported by voters immediately after they become aware of them. Causes for deficiencies in the keeping of the electoral register can be of a highly diverse nature: The danger of "voting tourism" seems to be rather low in federal votes and elections. However, the registration of several persons with fictitious domiciles is considered a serious deficiency - at least in the case of communal votes and elections.
27 Deficiencies in the keeping of the electoral register do not necessarily lead to the annulment of the election or voting result. Rather, the identified deficiencies must be suitable for influencing or distorting the result of the election or vote. It must be borne in mind that errors in the electoral register cannot be eradicated by a recount. As long as they are not systematic deficiencies across the board, they are seldom capable of influencing the result of a federal election or referendum. Due to the way in which communal electoral registers are kept and thus the lack of a nationwide overview, it must be ensured that a person who changes his or her place of residence during a vote or election and receives voting documents twice does not vote or elect twice in federal matters.
B. Paragraph 2: Cut-off date
28 Entries in the electoral register for federal matters must be made in accordance with Art. 4 para. 2 no later than the fifth day before the day of the election or vote. The closure of the electoral register for 4 days before a ballot serves the purpose of preparing the votes and elections in the polling stations. At the same time, the shutdown is intended to prevent "possible machinations" and to prevent errors "in the hectic rush of the last few days."
29 The deadline can generally be determined early in the case of federal votes and elections. As a rule, the Federal Council sets the voting date at least four months in advance (Art. 10 para. 1bis PRA). Moreover, the National Council elections take place on a fixed date (second last Sunday in October). If the Federal Council determines extraordinary election and voting dates, the possibility of timely entry in the electoral register and, if necessary, its verification by those entitled to vote must be guaranteed.
30 The requirements for entry in the electoral register must be met not on the qualifying date but on the day of the vote or election. Minor Swiss citizens who reach the age of 18 shortly before or on the day of the election or vote must therefore be registered by the communes ex officio in good time in order to safeguard their political rights at their political place of residence.
31 The provisions on keeping the electoral register apply separately to each ballot. If changes occur between two ballots with regard to registration (e.g. departure, move, death, etc.), this must be adjusted immediately, taking into account the closure of the electoral register with regard to the second ballot.
32 Paragraph 2 regulates the latest time of registration in accordance with the wording. In our opinion, later entries in the federal electoral register are inadmissible. The inadmissibility results on the one hand from the wording of the provision. On the other hand, the requirement of equal legal treatment of applicants with regard to registration or deletion must be observed. Furthermore, the provision aims at the undisturbed preparation (cf. n. 38). Cancellations, on the other hand, may exceptionally take place after the cut-off date, taking into account the right to the lawfully constituted voting body, if 1) the elimination of the prerequisites for the keepers of the electoral register is established beyond doubt, 2) a mutation in the electoral register does not interfere with the preparations and 3) any vote cast can be sorted out without further ado. Cases are conceivable in which the loss of the right to vote on the day of the vote or election is proven on the basis of a document (e.g. court judgment, death certificate) and the deletion could therefore be carried out without further clarification. However, in the absence of more far-reaching provisions in the PRA or VPR, deletion from the federal electoral register must be dispensed with even in such cases in the interests of equality of rights (cf. on the requirement for more far-reaching provisions in the PRA: n. 38 ff.).
33 Challenges in practice in connection with changes in the electoral register are identified in particular in the case of a change of residence and the corresponding subsequent retrieval of election and voting documents. In order to avoid exercising voting rights twice, voters should be able to obtain election and voting documents subsequently if they can prove that they have not already voted; as a rule, this is only possible by handing over the voting documents of the previous place of residence.
C. Paragraph 3: Inspection
34 Inspection of the electoral register for federal matters is open to all natural persons who are entitled to vote in federal matters (cf. the more precise wording in the French version: "par tout électeur").
35 Legal entities are not entitled to vote. Consequently, they may not be granted access to the electoral register. However, a special question arises with regard to political parties. In certain cantons, political parties are expressly prohibited from inspecting the electoral register and from providing extracts thereof in the run-up to elections. Other cantons, however, grant political parties corresponding rights. In this respect, it is important to note that political parties and political associations, in particular initiative and referendum committees with legal personality, are granted a right of appeal in voting matters under certain conditions. However, the inspection of the electoral register by political parties regularly serves the purpose of political work (sending out election advertisements, collecting data on the electorate). In these cases, it is a misappropriation of the right of inspection, which enables individuals to check the legally constituted voting body and thus serves the exercise of their political rights. Cantonal regulations that allow the register to be disclosed to political parties are consequently only permissible for the electoral registers in cantonal and communal matters.
36 In principle, inspection relates to all the names listed in the electoral register. Only in this way can the composition of the correct voting body be verified. Art. 3 restricts the exercise of political rights to the political domicile. At the same time, the cantons are responsible for the more extensive provisions on keeping the electoral register (Art. 83 PRA). Based on this provision, it is questionable whether the exercise of the right to inspect the electoral register for federal matters is also restricted to the respective municipality or canton. Such a local restriction could, however, run counter to the purpose of inspection with regard to the federal voting body.
37 Inspection is an outflow of the right of voters to the correct composition of the voting body. As part of political rights, this right is guaranteed by Article 34 para. 1 FC. Due to the organ function of the right to vote, the claim to correct composition refers not only to one's own right to vote, but also to the right to vote of third parties. Guaranteed in particular are a) the granting of one's own right to vote, b) the entry in the electoral register ex officio, and c) the admission of all those entitled to vote and the exclusion of those not entitled to vote.
38 Interpreting paragraph 3 with paragraph 2, it follows that inspection is not permitted during the closure of the electoral register and that a voting rights appeal against a refusal to allow inspection during this period would therefore come to nothing. Paragraph 3 does not contain any further restrictions on the right of inspection. At the time of the enactment of the provision, the legislator considered the restriction primarily from the perspective of avoiding "disturbances" in the run-up to votes and elections. This is hardly surprising in view of the various incidents of manipulation (cf. above on the legislative history, esp. n. 3). Although an unrestricted and unconditional access is to be assumed in principle on the basis of paragraph 3, a differentiated, constitutional interpretation is required (cf. n. 39-45 below).
39 The processing of personal data is generally associated with the risk that the privacy of individuals may be endangered. The right to inspect the electoral register, which is protected by fundamental rights, can thus collide with the fundamental right to protection of personal data (cf. Art. 13 para. 1 FC; right to informational self-determination). Special attention must therefore be paid to controlling the disclosure of personal life facts to third parties.
40 The inspection of the electoral register concerning one's own person is unproblematic from the outset and permissible at any time. However, when inspecting the data of third parties, it must be noted that such disclosure of personal data constitutes a restriction of the scope of protection of the right to informational self-determination. Particularly in the case of sensitive data, a particularly strict standard of review is appropriate when examining the requirements under Article 36 FC.
41 Particularly sensitive personal data relating to the existence of a comprehensive guardianship or a validated advance directive can be obtained - at least indirectly - from the electoral register: In the case of Swiss citizens who are not listed in the electoral register, an adult protection measure or a validated advance directive can be suspected as a result of incapacity - or even ascertained on the basis of explicit information in the register in accordance with municipal or cantonal requirements. In addition, further personal data, namely information on nationality, can also be obtained from the electoral register: Natural persons who do not hold Swiss citizenship may not be entered in the federal electoral register.
42 Art. 4 para. 3 provides the formal legal basis for the processing of personal data requiring special protection (Art. 36 para. 1 FC). The access to the electoral register regulated by federal law and thus the encroachment on the constitutional right to informational self-determination can be justified by guaranteeing the fundamental political right to the correct composition of the electoral body (Art. 36 para. 2 FC). However, because of the conflict of fundamental rights and taking into account a potential contradiction with higher-level (constitutional) law, the question arises as to whether unrestricted and unconditional inspection of the electoral register is mandatory (Art. 190 FC) and consequently precludes a proportionality test under Art. 36 para. 3 FC from the perspective of the right to informational self-determination. This question must be clarified on the basis of "method pluralism". Para. 3 must be interpreted in conformity with the Constitution, taking into account the postulate of unity and freedom from contradiction of the legal order.
43 The different regulations and interpretations in the cantons regarding the right of inspection and the public access to the electoral register indicate - not least because of the reservation of approval by the Confederation (Art. 93 PRA) - that Paragraph 3 leaves a corresponding scope for interpretation in conformity with the constitution and thus for consideration of the principle of proportionality. The Canton of Zurich, for example, provides in § 9 para. 2 of the Law of 1 September 2003 on Political Rights (GPR/ZH; LS 161) that voters are "provided with information on a person's eligibility to vote" upon request. This provision was introduced because the more extensive inspection of the electoral register led to problems in the canton of Zurich. In particular, the register was inspected for irrelevant reasons, for example to find out a person's date of birth. In accordance with the principle of proportionality, the comprehensive right to inspect the register was therefore replaced by a right to information about the voting rights of a specific person. The canton of Zurich assumed that this would not impair the purpose of making the electoral register public. Other cantons have also enacted corresponding restrictions on the voting register in federal matters or interpreted their cantonal provisions accordingly. A look at practice also shows the need to take suitable measures to ensure that, for example, the right of blocking in the residents' register cannot be undermined by an inspection of the electoral register. In other words, various cantons assume that the right of inspection need only be granted to the extent necessary to verify the correct composition of the voting body.
44 In our opinion, such an understanding of paragraph 3 in the sense of a contemporary, teleological and constitutional interpretation is also necessary so that the right to informational self-determination is not disproportionately restricted. With regard to the balancing of interests, it should be noted that due to the size of the federal electoral body and the decentralized organization of the electoral register for federal matters, there is generally less interest on the part of individual voters in full disclosure than, for example, in a small municipality with regard to its municipal electoral register. Individual errors in the electoral register have little effect at the federal level, whereas those in a small municipality can be of decisive importance. Overall, only those data should be disclosed that are absolutely necessary for safeguarding political rights. In terms of personnel, inspection should therefore be limited to certain persons, unless a broader inspection is required due to a more extensive interest (e.g. concrete suspicion of nationwide irregularities and manipulations).
45 De lege ferenda, it would be welcome if, in a next revision of the PRA or the VPR, the Confederation were to clarify the constitutional understanding of the right of inspection in a uniform manner for all cantons.
46 Requests to inspect the electoral register may only be made in order to safeguard political rights, namely due to doubts about the correct registration of certain persons. According to paragraph 3, no justification is required in principle. In our view, such justification may only be required if there are indications that the inspection is disproportionate or abusive. In particular, a comprehensive and unlimited inspection without assertion of comprehensible reasons, for example out of sheer curiosity (e.g. "browsing" and "rummaging" in the sense of a "fishing expedition"), appears problematic, at least in view of the fundamental rights of third parties.
47 The form of inspection is governed - in the absence of federal regulations - by cantonal law. It can be guaranteed in different ways and must be proportionate. Art. 4 can be complied with, for example, by on-site inspection or by means of restricted "online access" as well as by written or oral notification or information. The public disclosure of the entire electoral register is delicate from the point of view of interference with fundamental rights (cf. above n. 39 ff.). As a rule, confirmation or denial of the registration of a particular person should be sufficient to guarantee political rights and, in particular, to verify that the voting body is lawfully composed (cf. above n. 43 on the regulation in the Canton of Zurich).
48 There is no entitlement to the publication of the electoral register or to the production of a copy (transcript or image) either on the basis of the guarantee of Art. 34 para. 1 FC or of Art. 4 para. 3 PRA. The provision of extracts from the electoral register is regulated differently at the cantonal level. In any case, no claim to the publication of an extract from the electoral register can be derived on the basis of Art. 4. Rather, the question arises as to whether the disclosure of an extract of the entry of third parties would constitute an unnecessary and thus disproportionate encroachment on their fundamental rights and would therefore have to be qualified as inadmissible.
49 Supervision of the keeping of the electoral register is generally the responsibility of the municipalities, namely the municipal council. The publication of the electoral register within the framework of supervision may be necessary, in particular if there is a suspicion of systematic deficiencies. In particular, the supervision could be of considerable importance if a more comprehensive inspection would be considered disproportionate.
We thank Dr. iur. Kaspar Plüss for his critical review and valuable suggestions.
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