-
- 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
1 The provision in Art 51 CPD, according to which by-elections in single-member constituencies are governed by the provisions on majority voting (Art. 47-49 PRA), has existed since the enactment of the CPD. With the partial revision of the PRA of 18 March 1994, only an editorial adjustment was made to the reference in Art. 51 of the PRA, since aArt. 50 of the PRA concerning the determination of election results was repealed as part of this partial revision.
2 In the Federal Act on the Election of the National Council of 14 February 1919, which regulated the National Council election procedure prior to the enactment of the PRA, the filling of vacancies in the National Council during the term of office was explicitly regulated in Art. 24 f. only for the proportional representation cantons. In the case of a single vacant seat, reference was made to the provisions on the election procedure in single-member constituencies (majority election with relative majority). Implicitly, there was already a provision for by-elections in single-member constituencies (where, due to the system, only one vacancy can occur) that corresponded to that of the current PRA.
II. Significance of the provision
A. Changes during the term of office
3 The members of the National Council are elected for a term of four years. The term of office begins with the constituent meeting of the National Council on the seventh Monday after the election and ends again with the constitution of the newly elected Council.
4 Changes during the term of office - for both proportional representation and majority cantons - are in principle regulated in the 5th chapter of the PRA in Art. 54 ff. PRA. Such changes result from the departure of elected National Council members during the term of office, in particular in the event of resignation or death, or also if eligibility requirements cease to apply during the term of office. A resignation from the National Council shall be notified in writing to the President of the National Council. The General Secretariat of the Federal Assembly then notifies the respective cantonal government of the resignation so that it can initiate the filling of the vacancy by means of a by-election or, in proportional representation cantons, by succession or a supplementary election. The replacement is only for the remainder of the current term of office.
5 According to Art. 51 PRA, the by-election in majority cantons is governed by Art. 47-49 PRA. Systematically, it would have been more coherent to regulate Art. 51 PRA - as well as succession and by-election in proportional representation cantons - under Chapter 5 "Changes during the term of office". Thus, Art. 54 PRA concerning resignation from the National Council and Art. 57 PRA concerning the end of the term of office apply to both proportional representation and majority cantons.
B. No succession, but direct (silent) replacement election
6 If a member of the National Council elected in a single-member constituency leaves the National Council during the term of office, a direct by-election by the electorate must take place. This is in contrast to the proportional representation cantons, where a National Council office that becomes vacant during the term of office is first filled by a replacement from the same list and only secondarily by a by-election.
7 The election of a substitute in major-majority cantons can take place through a popular election at the ballot box or - in cantons with the necessary legal basis for this - also through a silent election. In cantons with a majority without the possibility of a silent election, there is no nomination procedure prior to the by-election, but - as in the case of the general renewal elections - an election by ballot takes place in any case. On the occasion of the ballot, every eligible person can be voted for, whereby whoever receives the most votes is elected. In the majoritarian cantons with the possibility of a silent election, on the other hand, a nomination procedure must also be carried out to fill vacancies during the legislative term. If there is only one valid candidature, the proposed person is declared elected. If more than one valid candidature for the vacancy is received in due time, the election shall be by ballot using pre-printed ballot papers.
C. Legal comparison
8 By-elections and supplementary elections are scheduled by the cantonal government for the next possible date. Accordingly, the major-majority cantons - with the exception of the canton of Appenzell Ausserrhoden - know legal regulations in this regard:
9 In the canton of Uri, by-elections are to be held as soon as possible, as a rule within three months.
10 In the canton of Obwalden, a by-election may be omitted if general renewal elections take place within six months.
11 The Introductory Act of the Canton of Nidwalden to the PRA does not contain any provisions regarding by-elections. However, for the elections to the cantonal government and the Council of States, the cantonal election and voting law provides that by-elections can be held at any time, which should also apply to the filling of a vacant National Council seat.
12 In the canton of Glarus, a by-election must generally be held within six months of the resignation or death of a member of an authority or if the conditions for eligibility no longer apply. A by-election may be waived if the ordinary general renewal election takes place within six months.
13 In the canton of Appenzell Innerrhoden, a by-election shall be held as soon as possible if a vacancy occurs during the year of office. For important reasons, the by-election may exceptionally be postponed with the approval of the Ethics Committee, but at most until the next ordinary election. With this in mind, the Professional Ethics Committee decided not to fill the vacancy in the National Council that occurred on 3 June 2019 through a by-election, but to do so on the occasion of the federal general renewal elections on 20 October 2019.
14 In summary, the cantonal government must hold the by-election as soon as possible, i.e. as a rule within three to six months. The cantons have a certain discretion in determining the date of the by-election. This is exercised by the majority cantons with the cited regulations in a manner compatible with Art. 34 FC. The cantonal legal systems do not contain any provisions on the by-election that go beyond the date of the by-election.
III. Commentary on the text of the norm
15 According to Art. 51 PRA, Art. 47-49 also apply to by-elections. The procedure for by-elections is therefore governed by the provisions on general renewal elections in majoritarian cantons. In the following, reference is made only to special features and deviations, whereby a distinction is made between majoritarian cantons without and those with the possibility of a silent (by-election).
A. Majority cantons without the possibility of a silent election
16 For cantons without the possibility of a silent election, there are no significant differences to the procedure for the general election. The only special feature is that the time of the election is not determined by federal law, but must be set by the cantonal government. When setting the date for the by-election, the cantonal governments must, on the one hand, observe the requirements of cantonal law. On the other hand, they must weigh up the right of the voters to a free and comprehensive process of will formation against the interest in filling the vacancy as quickly as possible.
17 The official ballot papers, to be produced at the expense of the State, shall be sent to the voters at least three and at the earliest four weeks before the election day fixed by the cantonal government. On the occasion of the election, votes may be cast for any eligible person. The person who receives the most votes shall be elected. In the event of a tie, the decision shall be taken by lot.
18 In cantons that have a voluntary registration procedure within the meaning of Art. 47 para. 1bis PRA, such a procedure must in principle also be carried out for by-elections.
19 After the ballot has been held, the cantonal government shall immediately notify the Federal Chancellery and the General Secretariat of the Federal Assembly of the name of the elected substitute for the attention of the President of the National Council and publish it in the cantonal official gazette. A member newly elected in the context of a by-election may only participate in the negotiations after his or her election has been declared valid by the cantonal government.
B. Majority cantons with the possibility of a silent election
1. Proposal procedure
20 In cantons with the possibility of a silent election, a proposal procedure must also be carried out for by-elections, during which the voters may propose any eligible person for the by-election.
21 Unlike in the case of general renewal elections, the deadline for nominations in the case of by-elections is not prescribed by federal law and is thus determined by the cantonal government. In the canton of Nidwalden, the procedure is usually that a by-election date is determined and the election registration deadline is then set for the 48th day before the by-election date. As in the major-majority cantons without a silent ballot, the date of the by-election (which, in the sense of a ballot, naturally only takes place if several valid candidatures are received) must be set after weighing up the voters' right to a comprehensive decision-making process and the interest in filling the vacancy as quickly as possible. In doing so, the time required by the voters to collect nominations shall be taken into account appropriately.
22 Furthermore, the deadline for nominations, i.e. the period during which nominations may be submitted, is not prescribed by federal law, in contrast to the deadline for supplementary elections in proportional representation cantons. However, it does not seem appropriate to refer to the 30-day proposal period provided for in Art. 16 VPR for supplementary elections, especially since in the majority cantons not only certain voters but all voters can submit nominations and not only those originally nominated but any eligible person can be nominated for the by-election.
2. No proposal privilege
23 In supplementary elections in proportional representation cantons, three-fifths of the signatories of the list (art. 24 para. 1 PRA) or the executive committee of the cantonal party (art. 24 para. 3 PRA) that submitted the list on which the retired member of the National Council was included may submit a nomination, provided that a seat cannot be filled by succession.
24 In major-majority cantons with a silent election, there is no such proposal privilege. Instead, the nomination procedure is governed by cantonal law and, in principle, all voters are entitled to sign nominations for the seat that has become vacant.
3. Ballot in the event of several nominations
25 If several valid nominations are received within the nomination period, a silent election is excluded and the cantonal government must order a ballot. Even if the reference in Art. 51 PRA is limited to Art. 47-49 PRA, in the author's view, Art. 50 PRA is also applicable in the case of several valid candidatures and there must be a binding effect on the election proposals. This is all the more so since the materials in no way indicate, nor is it evident, why such a binding obligation should not exist in the case of by-elections - unlike in the case of general renewal elections. In this respect, all candidates nominated in due time must be listed on the ballot paper in pre-printed form. On the occasion of the ballot, votes can then only be cast for the candidates pre-printed on the ballot paper. Votes cast for candidates who are not pre-printed and ballot papers on which more than one candidate is marked shall be invalid.
Materials
Botschaft des Bundesrates an die Bundesversammlung zu einem Bundesgesetz über die politischen Rechte vom 9.4.1975, BBl 1975 I S. 1317 ff. (zit. Botschaft BPR).
Botschaft über eine Teiländerung der Bundesgesetzgebung über die politischen Rechte vom 1.9.1993, BBl 1993 III S. 445 ff. (zit. Botschaft 1993).
Bibliography
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der schweizerischen Eidgenossenschaft, 2. Aufl., Zürich et al. 2023.