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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 origin
- II. Comparison of law
- III. Significance of the provision and content of the provision
- Bibliography
I. History of origin
A. Constituent sitting
1 The Federal Act on the Election of Members of the National Council of December 21, 1850, contained provisions on the constituent session of the National Council and the election scrutiny. It stipulated that the newly elected members of the National Council must "assemble without further invitation on the first Monday in the Christmas month at 10 o'clock in the morning for the constituent sitting of the National Council in the Federal City". Elected members who were "provided with a letter from a cantonal government certifying their election" were allowed to attend each constituent sitting. Elections were examined at the constituent meeting, and during the handling of objections to elections, those deputies whose election was disputed had to stand down.
2 The Federal Act on Federal Elections and Votes was enacted in 1872. The provisions of the Federal Act on the Election of Members of the National Council of 1850 relating to the time of the constituent sitting of the National Council and the scrutiny of elections were adopted without any material changes. Thus, from 1850 (beginning of the 2nd legislative period) to 1967 (beginning of the 38th legislative period), the constituent sessions of the National Council always took place on the first Monday in December.
3 In 1971, the law was amended as follows with regard to the date of the constituent session of the National Council: according to this amendment, the constituent session may be brought forward to the last Monday in November at 10 a.m. by "a resolution passed in the previous session by the National Council in agreement with the Council of States." The Federal Council justified the need for the revision in particular by stating that the change would allow "special circumstances of a calendar year" to be addressed or "the agenda to be taken into account". This was the case in 1971: the first Monday in December fell on December 6, 1971, leaving Parliament "only around 2 ½ weeks (19 days) until Christmas Day", which meant that the time available to deal with the "ordinary business of the winter session (Confederation's budget, SBB and PTT, supplementary credits, annual report and accounts of the Alcohol Board)" and the "business of the Federal Assembly" was far too short. The constituent session of the National Council of the 39th legislative period took place on the last Monday in November, on November 29, 1971. The following 40th legislative period was opened again, as usual, on the first Monday in December (December 1, 1975).
4 With the creation of the Federal Act on Political Rights in 1976, a provision was also created concerning the electoral review (Art. 53 PRA as amended on December 17, 1976). Although this stated that the validity of the elections must first be decided at the constituent sitting following the election of the National Council, the legislator failed to specify the date of the constituent sitting. As a result, the date of the constituent sitting was not regulated by law from 1978 until the entry into force of the current provision in Art. 53 para. 1 PRA 2003. During this period, the dates of the constituent sessions of the National Council were set in accordance with the provisions for determining the start of the winter session. Accordingly, the constituent sessions from 1978 to 2003 took place either on the last Monday in November or the first Monday in December.
5 When the PRA was revised in 2001, the Federal Council noted in its dispatch that the date of the National Council's constituent sitting was not regulated in the law. However, as this was "an important provision within the meaning of Art. 164 FC", "the constitution is a prerequisite for the Council to be able to negotiate at all", the Federal Council proposed to Parliament that the date of the constituent meeting be regulated in the PRA. Parliament followed the Federal Council's suggestion and defined in Art. 53 para. 1 PRA as amended on June 21, 2002 that the constituent meeting of the newly elected National Council would take place on the seventh Monday after the election.
6 As early as 1994, Art. 53 para. 3 PRA had to be revised due to a legislative oversight. In its original version, Art. 53 para. 3 PRA stipulated that a newly elected member may only take part in the proceedings after their election has been declared valid. As this naturally also applies to members of the National Council newly elected by by-election, Art. 53 para. 3 PRA was amended accordingly in the 1994 revision of the PRA.
B. Election audit without handling election complaints
7 Until the 2003 judicial reform, the National Council was responsible for dealing with election complaints against the National Council elections in the last instance as part of the election review, which takes place at the constituent sitting. However, with the implementation of the judicial reform, the Federal Supreme Court acquired jurisdiction to adjudicate disputes concerning violations of federal provisions on political rights (Art. 189 para. 1 lit. f FC). Since then, the Federal Supreme Court has been the court of last instance to decide on election complaints (see also Art. 77 para. 1 lit. c in conjunction with Art. 80 para. 1 BGG). The National Council is now only responsible for validating (upholding) the election as part of the election review. The legislator has thus implemented the division of the handling of complaints and the validation of elections required by "the Federal Constitution" and amended Art. 53 PRA accordingly. Parliament thus responded to the call of doctrine: According to today's ideas of the rule of law and democracy, the "conflation of the validation of an election with the simultaneous handling of election complaints by the newly elected parliament" is outmoded.
II. Comparison of law
A. Constituent session
8 The majority of cantons define the time of the constitution of the parliament in their decrees concerning the election of their parliament or in the rules of procedure of the parliaments. In many cases, the newly elected members of the cantonal parliaments must, analogous to Art. 53 para. 1 PRA, convene for the constituent meeting at a time determined by law after the election.
9 In a minority of cantons, the government is responsible for inviting the newly elected members of parliament to the constituent meeting after the overall renewal. This variant is problematic in terms of the separation of powers because it means that the newly elected parliament is dependent on the participation of the government for its constitution. Therefore, the option whereby the date of the constitution of parliament is determined by law is to be preferred.
B. Content of the electoral review
10 All cantonal parliaments carry out an election audit as part of their constituent sessions. The content of the election audit differs from canton to canton and can be roughly divided into two categories:
11 In most cantons, the election audit is limited to the validation (preservation) of the election. In these cantons, the review of election complaints received is finally settled by constitutional or administrative courts. In most cantons, this separation of review and appeal bodies in electoral matters is not only in line with a long-standing doctrinal demand, but also with the requirements contained in the guarantee of legal recourse pursuant to Art. 29a FC.
12 In a few other cantons, the separation of review and appeal instances has not (yet) been implemented. In the cantons of Zurich, Lucerne, Schwyz, Thurgau and Valais, the newly elected parliament decides both on election complaints received and on the validation of its own election. This link between the validation and appeal instance is not compatible with federal constitutional requirements, as the decision of the cantonal parliament in these cantons cannot be appealed to a higher cantonal court. In the cantons of Graubünden and Vaud, the newly elected parliament is also responsible for handling election complaints and validating the election as part of the election review. However, these decisions can be appealed to the respective cantonal constitutional court, thereby complying with the guarantee of legal recourse.
III. Significance of the provision and content of the provision
13 Art. 53 PRA deals with the constituent meeting and not just the actual election review (as the title of the article states). The provision sets the date for the constituent sitting of a newly elected National Council and defines the point in time from which a member who moves up or is newly elected in the case of by-elections or supplementary elections may participate in the proceedings of the National Council. With the constitution - the determination of the results of the parliamentary election - the individual members' entitlement under federal law to a seat in the National Council is realized and they thereby acquire all the rights and obligations provided for by the Constitution and the law (see Art. 6 et seq. ParlA). It also establishes the National Council's capacity to act.
A. Para. 1
1. Constituent sitting
14 After each complete renewal of the National Council, all re-elected and newly elected members shall assemble for the constituent sitting of the National Council. The constitution of the newly elected National Council takes place on the seventh Monday after the election (Art. 53 para. 1 sentence 1 PRA). The constitution is the first meeting of the newly elected parliament in order to pass important, mostly organizational resolutions and to appoint certain new parliamentary bodies. The term of office (legislative period) of the newly elected Council (as a body) begins with the constitution, while that of the previously elected National Council ends (Art. 57 PRA).
15 The procedure for the constituent meeting is not regulated in the PRA itself, but in the Rules of Procedure of the National Council (Art. 53 para. 1 sentence 4 PRA). The agenda items for the constituent sitting are set out in Art. 1 para. 2 SO-NC and must be dealt with in the order laid down in the Rules of Procedure: The constituent sitting always begins with a speech by the oldest member of the National Council and a speech by the youngest newly elected member of the National Council (Art. 1 para. 2 lit. a SO-NC). The National Council then establishes its constitution (Art. 1 para. 2 lit. b SO-NC). The constitution is determined at the request of the provisional office. Prior to the constituent meeting, the Provisional Bureau examines whether the elections of the majority of the members of the Council have remained uncontested or have been declared valid and submits a corresponding motion to the Council (Art. 4 para. 1 lit. a SO-NC). Immediately after the constitution has been established, the Council members present whose election has remained uncontested or has been declared valid are sworn in (Art. 1 para. 2 lit. c in conjunction with Art. 5 SO-NC). After any incompatibilities have been established at the request of the provisional office (Art. 1 para. 2 lit. d in conjunction with Art. 4 para. 1 lit. b SO-NC and Art. 14 ParlA), the election of the President, First Vice-President, Second Vice-President, vote counters and substitute vote counters follows (Art. 1 para. 2 lit. e-i SO-NC).
16 The constituent sitting of the National Council ends with the performance or playing of the Swiss anthem. Although the playing of the national anthem at the beginning of a new legislative period is neither regulated by law nor by the rules of procedure, this has been the practice of the National Council since 2011. The establishment of this practice can be traced back to a 2009 motion by the then National Councillor Ada Marra (SP/VD). As the Office of the National Council clarified in response to this motion, the playing of the national anthem would "underline the ceremonial character of the start of the legislative period [...]", but it was "up to each member of the Council to sing the anthem or not".
2. Electoral examination ("determination of the constitution")
17 The National Council is constituted as soon as the elections have been declared valid by at least a majority of its members (Art. 53 para. 1 sentence 3 PRA). This decision of the National Council ("determination of constitution") is carried out ex officio, even if no electoral complaints have been lodged.
18 At the constituent meeting, the National Council conducts the election audit. The procedure by which the legality and validity of an election is reviewed is referred to as the election review. Until the 2003 judicial reform, the National Council dealt with pending election complaints against the election of the National Council as well as validating the election. In the course of the judicial reform, the handling of complaints and the validation of the election were split up.
19 According to the current version of Art. 53 para. 1 PRA, the election review by the National Council is accessory to the election complaints lodged with the cantonal governments and before the Federal Supreme Court pursuant to Art. 77 lit. c in conjunction with Art. 80 para. 1 FSCA. Art. 80 para. 1 BGG. Due to the precedence of election appeals, the National Council must "await the outcome of the relevant appeal proceedings before the Federal Supreme Court and take into account the result of the decisions that are binding on it". The Federal Supreme Court must deal conclusively with appeals pending before it against decisions of the cantonal governments in relation to the National Council elections before the National Council is constituted. Due to the division of responsibilities, the National Council can only determine the validity of all those elections that have not been contested before the Federal Supreme Court or whose appeals have been finally settled by the Federal Supreme Court. The National Council's scrutiny of elections is therefore limited to the validation of the election. With the validation of the election, the National Council establishes its constitution (Art. 53 para. 1 sentences 2 and 3 PRA).
B. Para. 2: Right to attend and vote at the constituent meeting
20 Only designated members who have a confirmation of election from their cantonal government may attend and vote at the constituent sitting of the National Council (Art. 53 para. 2 PRA). The confirmation of election from the cantonal government pursuant to Art. 53 para. 2 PRA is issued to the designated members of the National Council if no complaints have been lodged at cantonal or federal level or if the outcome of federal court proceedings relating to the contesting of the election is certain. The confirmation of election should not be confused with the notification of election pursuant to Art. 52 para. 1 PRA. The latter is merely a notification from the cantonal government to the elected person of the provisionally determined election results.
21 In addition, Art. 53 para. 2 PRA stipulates a recusal rule: members whose election is disputed must recuse themselves from their own election review ("on their own behalf"). Conversely, this means that a member whose election is contested may also participate in the assessment of elections in other cantons (constituencies). This ensures that the National Council has a quorum for the election review.
C. Para. 3: Right to participate in the event of succession, by-election or supplementary election
22 para. 3 of Art. 53 PRA regulates the right to participate of members of the National Council who have moved up or who have been newly elected by substitute or by-election. A member of the National Council who moves up or is newly elected by way of a substitute or by-election may only participate in the proceedings of the National Council if their election has been declared valid. Accordingly, neither the declaration by the cantonal government that someone has been elected as the first substitute (in the case of succession; Art. 55 para. 1 PRA), nor the election itself in the case of a by-election or by-election (Art. 56 or Art. 51 PRA) is sufficient for participation in the proceedings of the National Council.
23 The determination of the validity of the election in the case of members of the National Council who move up or are newly elected by by-election or by-election is carried out analogously to the rules of the constituent sitting of the National Council. However, the examination is not carried out by the provisional office, but by the office already appointed by then in accordance with Art. 8 para. 1 SO-NC. The office checks whether the member's election has remained uncontested or has been declared valid. It also checks whether there are any incompatibilities pursuant to Art. 14 ParlA. If the election was valid and no incompatibilities have been identified, the Office requests the National Council to formally approve the election. If there are no counter-motions, the Bureau's motion is declared adopted without a vote. After being sworn in, the new member is entitled to take part in the proceedings of the National Council.
I would like to thank Benjamin Böhler, BLaw, assistant at the Center for Democracy Aarau, for his help 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
Brunner Arthur/Glaser Andreas, Kommentierung zu Art. 145 BV, in: Ehrenzeller Bernhard/Egli Patricia/Hettich Peter/Hongler Peter/Schindler Benjamin/Schmid Stefan G./Schweizer Rainer J. (Hrsg.), Bundesverfassung, St. Galler Kommentar, 4. Aufl., Zürich 2023.
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 im Bereich der politischen Rechte, insbesondere mit Blick auf Probleme bei der Beschwerde in eidgenössischen Stimmrechtssachen, Diss. Zürich, Zürich 2017.
Lammers Guillaume, Kommentierung zu Art. 149 BV, in: Martenet Vincent/Dubey Jacques (Hrsg.), Constitution fédérale, Commentaire romand, Basel 2021.
Markić Luka, Das kantonale Rechtsschutzverfahren im Rahmen der politischen Rechte, Diss. Zürich 2021, Zürich 2022.
Markić Luka, Kommentierung zu Art. 52 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/bpr52, besucht am 18.10.2023.
Markić Luka, Kommentierung zu Art. 57 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/bpr57, besucht am 18.10.2023.
Steinmann Gerold/Mattle Adrian, Kommentierung zu Art. 82 BGG, in: Niggli Marcel Alexander/Uebersax Peter/Wiprächtiger Hans/Kneubühler Lorenz (Hrsg.), Bundesgerichtsgesetz, Basler Kommentar, 3. Aufl., Basel 2018.
Thurnherr Daniela, Kommentierung zu Art. 149 BV, in: Waldmann Bernhard/Besler Eva Maria/Epiney Astrid (Hrsg.), Bundesverfassung, Basler Kommentar, Basel 2015.
Tornay Schaller Bénédicte, Le recours au Tribunal fédéral en matière d’élections fédérales, in: AJP 2017, S. 351–367.