-
- 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. Comparison of laws
- III. Significance of the provision and content of the provision
- Bibliography
I. History of origin
1 The Federal Act on the Election of Members of the National Council of December 21, 1850 already contained provisions on the announcement of elections and the publication of election results. In contrast, the subsequent Federal Act on Elections to the National Council of February 14, 1919 no longer contained any such provisions. The Federal Council issued regulations on the notification of elections, the handling of ballot papers and the publication of election results in the Implementing Ordinance to the Federal Act on Elections to the National Council of July 8, 1919.
2 With the creation of the Federal Act on Political Rights in 1976, the provisions relating to the notification of ballots and the publication of election results, which had previously been contained in the Implementing Ordinance, were incorporated into the PRA and thus regained legal status. The new PRA provision corresponded in substance to the relevant provision in the Implementing Ordinance. Art. 52 PRA in the version of December 17, 1976 provided that after the results had been determined, the cantonal government shall immediately notify the elected candidates of their election in writing and inform the Federal Council of the names of the elected candidates (para. 1) and the cantonal government shall publish the results of all candidates in the cantonal official gazette with reference to the possibility of appeal (para. 2).
3 Since the PRA came into force in 1978, Art. 52 PRA has undergone several amendments:
In 1986, a new para. 3 (sentence 1) was added to the provision. According to this, the results of general, supplementary and by-elections - in addition to publication in the cantonal official gazettes (Art. 52 para. 2) - must be published in the Federal Gazette. It is true that the National Council election results were already published in the Federal Gazette before 1986. As this practice had not previously been expressly regulated in any decree, this was made up for at the request of the Federal Council.
In 1993, the legislator added a new para. 4 to Art. 52 PRA, obliging the cantons to forward the respective election protocols to the Federal Chancellery immediately after expiry of the appeal period pursuant to Art. 77 para. 2 PRA and to send the ballot papers to the place specified by the Federal Chancellery within ten days of expiry of the appeal period. In para. 2, the legislator also replaced the term "cantonal government" with "canton".
In 2003, para. 2 was revised to the effect that the cantons must publish the election results in the cantonal official gazette within eight days of the election day. Due to the possibility of election appeals to the Federal Supreme Court introduced with the judicial reform of the Federal Constitution (Art. 189 para. 1 lit. f FC), the legislator feared that a possible "organized flood of election appeals" could thwart the timely commencement of parliamentary work in a manner "contrary to democracy". The legislator therefore had to take measures to make such "frustration" impossible. This included setting a time limit on the official publication of cantonal results. The deadline of eight days had already been ordered by the Federal Council in 1991 by circular letter.
In 2004, para. 3 was supplemented with a new sentence 2 as part of the enactment of the Publication Act: according to this, the electronic version of the election results must also be published in the Federal Gazette. This clarification was necessary because Art. 16 para. 3 PublA as amended on 18 June 2004 stipulated that personal data be published anonymously in the electronic form of the Federal Gazette. However, the anonymization of election results would be contrary to the public interest in the correct conduct of the election.
II. Comparison of laws
4 The vast majority of cantons provide for rules on the publication of election results in their parliamentary election decrees. The definitive election results are published in the cantonal official gazette by the competent body, usually the electoral authority. Provisional election results are published on the Internet, in the media or by public notice on election Sunday. Cantons that do not have their own regulations on the publication of election results refer to the provisions of the PRA by analogy.
5 As in the National Council elections, the electoral authority notifies the elected candidates of their election in the cantonal parliamentary elections. Some cantons stipulate that the electoral authority must also refer to the provisions on rejection and incompatibility in the notice of election and provide information on legal remedies.
III. Significance of the provision and content of the provision
6 Art. 52 PRA regulates the election notification (para. 1), the publication of the election results (paras. 2 and 3), the election protocols (para. 4 sentence 1) and the handling of the ballot papers (para. 4 sentence 2). The regulations on the communication or publication of election results are of central importance for a democracy, as they represent an indispensable element of the principle of publicity of the election, which is derived from the principle of the freedom of voters to elect and vote (Art. 34 FC). The principle of publicity of the election requires that all essential steps of an election are subject to public scrutiny. To ensure that election results can be verified by the public, they must be published.
7 The provisions in Art. 52 PRA only set out rudimentary rules with regard to the procedure for determining and publishing election results. The procedure is specified both in the VPR and in the respective circular letter of the Federal Council. For the sake of clarity, these provisions will also be discussed below.
A. Para. 1: Election notification
8 After the close of voting, the competent offices in the cantons (communal, district or county authorities) must determine the election results "quickly and accurately" and then forward them to the cantonal state chancellery or the cantonal central office (cantonal electoral office). The cantonal electoral office in turn transmits this provisionally determined election result electronically to the Federal Chancellery and the Federal Statistical Office using forms 2, 4 and 5 in accordance with Annex 2 VPR. An unsigned copy of the minutes of the electoral offices (forms 4 and 5) is sent to the Federal Chancellery by post. This transmission takes place immediately, i.e. before the end of the appeal period. Form 5 in accordance with Annex 2 VPR is used to inform the Federal Chancellery, for the attention of the Federal Council, of the names of those elected and those not elected (Art. 13 para. 2 VPR).
9 On the basis of this provisionally determined election result, the cantonal governments notify those elected of their election in writing (Art. 13 para. 2 VPR). This notification is referred to as the election notification. The cantonal governments are required to notify the elected persons of their election without delay.
10 The notification of election has no legal effect. It merely constitutes a notification of the provisionally determined election results to the elected persons by the respective cantonal government. It should therefore not be confused with the "confirmation of election by the cantonal government" pursuant to Art. 53 para. 2 PRA, which the elected member of the National Council must present at the constituent meeting of the National Council and which can only be issued if no appeal has been lodged at cantonal or federal level or if the outcome of federal court proceedings has been determined.
11 For the sake of completeness, it should be mentioned that the notice of election does not coincide with the member of the National Council taking office. The newly elected member of the National Council only takes office when the oath or vow is taken (Art. 3 para. 1 ParlA). For this reason, the constitutionally guaranteed immunity of members of the National Council, for example, only takes effect - with exceptions - from the time they take office (Art. 162 FC). However, a member of parliament can benefit from the "pre-effective scope" of the principle of the free mandate for the period between being elected and taking office.
B. Para. 2: Publication of election results in the cantonal official gazette
12 The cantonal electoral office shall draw up a record of the election results in duplicate (Art. 12 para. 1 VPR in conjunction with Form 5 in accordance with Annex 2 VPR). The minutes must list the names of the elected and non-elected candidates on each list according to the votes received and include the corresponding personal data (first name and surname, year of birth, place of birth, place of residence and profession) (Art. 12 para. 2 VPR). The cantonal government must publish this election protocol in the cantonal official gazette immediately, but at the latest within eight days of the election day (Art. 52 para. 2 PRA in conjunction with Art. 13 para. 1 sentence 1 VPR).
13 The publication in the cantonal official gazette must contain a mandatory reference to the possibility of appeal pursuant to Art. 77 PRA. The absolute time limit for lodging an election complaint begins with the publication of the election result in the cantonal official gazette (cf. Art. 77 para. 2 PRA).
C. Para. 3: Publication of election results in the Federal Gazette
14 The results of general, supplementary and by-elections are published not only in the cantonal official gazette (Art. 52 para. 2 PRA), but also in the Federal Gazette (Art. 52 para. 3 sentence 1 PRA). Publication in the Federal Gazette takes place both in the printed version (Art. 16 PublA) and in the authoritative electronic version (publication platform; Art. 15 PublA).
15 Contrary to the provisions of data protection law (Art. 16b PublA), the results are published in the printed version (Art. 52 para. 3 sentence 2 PRA). The legislator thus makes it clear that the results must always be published in non-anonymized form. This provision was introduced by the legislator in 2004, as Art. 16 para. 3 PublA as amended on 18 June 2004 stipulated that personal data would be published anonymously in the electronic form of the Federal Gazette. Without the exception in Art. 52 para. 3 sentence 2 PRA, the election results would have been published without the names of the candidates in particular. However, this would have made the publication of the election results absurd. In its dispatch on the introduction of the exemption, the Federal Council rightly stated that "in the publication of the lists and election results of the National Council elections [...] the public interest in the correct conduct of the election [outweighs] claims to the protection of privacy. It must be possible to verify the precise allocation of all votes and thus the identity of all candidates who have combined votes."
16 Since 2016, the electronic version of the Federal Gazette has been the authoritative version (Art. 15 para. 2 PublA). Since then, publications in the electronic version may also contain personal data (Art. 16b para. 1 PublA). Personal data requiring special protection in accordance with Art. 3 lit. c FADP may no longer be publicly accessible and may not contain more information than is necessary for its purpose; this includes, in particular, a person's ideological, political or trade union activities (Art. 3 lit. c no. 1 FADP). However, this regulation does not apply to the publication of election results. It is in the public interest that election results are also subsequently accessible and therefore verifiable.
D. Para. 4: Election protocol and ballot papers
17 After expiry of the appeal period pursuant to Art. 77 para. 2 PRA, the cantonal governments shall immediately forward the election protocol to the Federal Chancellery or the Federal Council (Art. 52 para. 4 sentence 1 PRA). The election protocol is Form 5 in accordance with Annex 2 VPR. It must be signed by the executive committee of the cantonal electoral office and submitted in the original. The cantonal governments must also enclose with the election protocol a copy of the relevant official gazette and any complaints received as well as their statements (Art. 14 para. 1 VPR).
18 Pursuant to Art. 52 para. 4 sentence 2 PRA, the ballot papers shall be sent to the place specified by the Federal Chancellery within ten days of the expiry of the period for lodging complaints. Art. 14 para. 2 VPR designates the Federal Statistical Office as the place of receipt of the ballot papers. Not only the ballot papers, but also forms 1 - 4 in accordance with Annex 2 VPR must be sent to this location (Art. 14 para. 2 VPR). However, current practice deviates from this regulation: In fact, the Federal Statistical Office takes over the election results from the cantons in electronic form, which is why it is not necessary to transmit the physical election material in accordance with Art. 52 para. 4 sentence 2 PRA and Art. 14 para. 2 VPR. The cantons must store the election material securely until they have received notification from the Federal Office that they can dispose of the material. If complaints or criminal proceedings relating to the election are still pending at the time the Federal Office is notified, the cantons are obliged to retain the election material until the proceedings have been legally concluded. However, election nomination forms with the signatories or the cantonal party's executive committee must be kept for the entire term of office of the National Council, as these are needed for any supplementary elections pursuant to Art. 56 PRA.
19 As Art. 52 para. 4 sentence 2 PRA no longer corresponds to current legal practice, this provision must be revised in the next revision of the PRA.
I would like to thank Benjamin Böhler, BLaw, assistant at the Center for Democracy Aarau, for his assistance in researching the material and his valuable comments, as well as Janis Denzler, BLaw, assistant at the Center for Democracy Aarau, for his critical review of the text and his valuable comments.
Bibliography
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Krause José, Die Rechtsweggarantie (Art. 29a BV) im Bereich der politischen Rechte, Insbesondere mit Blick auf Probleme bei der Beschwerde in eidgenössischen Stimmrechtssachen, Diss. Zürich 2017, Zürich 2017.
Lammers Guillaume, Kommentierung zu Art. 149 BV, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire romand, Constitution fédérale, Basel 2021.
Markić Luka, Das kantonale Rechtsschutzverfahren im Rahmen der politischen Rechte, Diss. Zürich 2021, Zürich 2022 (zit. Markić, Rechtsschutzverfahren).
Markić Luka, Die elektronische Stimmabgabe im Lichte des Prinzips der Öffentlichkeit, E-Voting im Spannungsverhältnis zwischen dem Ruf nach mehr digitaler Demokratie und der Wahl- und Abstimmungsfreiheit, in: Dal Molin-Kränzlin Alexandra/Schneuwly Anne Mirjam/Stojanovic Jasna, Digitalisierung – Gesellschaft – Recht, Zürich 2019, S. 125–143 (zit. Markić, Prinzip der Öffentlichkeit).
Markić Luka, Kommentierung zu Art. 53 BPR, in: Glaser Andreas/Braun Binder Nadja/Bisaz Corsin/Tornay Schaller Bénédicte (Hrsg.), Onlinekommentar zum Bundesgesetz über die politischen Rechte, abrufbar unter https://onlinekommentar.ch/de/kommentare/bpr53, besucht am 18.10.2023.