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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 laws
- III. Significance of the provision and content of the provision
- Bibliography
I. History of origin
1 With the introduction of proportional representation for the appointment of the National Council in 1919, a provision on by-elections was also created. Article 25 of the Federal Act on the Election of the National Council of February 14, 1919 regulated the procedure in the event that a vacant seat in the National Council could not be filled according to the rules of succession. Even then, the rule was that a by-election had to take place if there was no eligible replacement on the list in question. For the by-election, the signatories of the list to which the retired member of the National Council belonged initially had the right to submit a proposal for a new replacement. At that time, the number of signatures required for a nomination was 15 signatures from those eligible to vote in the constituency concerned. If not all 15 signatures of the signatories of the original list were available, the remaining co-signatories were allowed to replace them by adding other voters. If the nomination was successful with 15 signatures, the proposed candidate was declared elected by the cantonal government in question without an act of election. If the signatories were unable to agree on an election proposal, a popular election (relative majority election) was held for the vacant seat.
2 When proportional representation was introduced, there were discussions about holding supplementary elections as popular elections. However, the Federal Assembly decided against this. The German-speaking rapporteur of the National Council's preliminary advisory committee, National Councillor Hans Sträuli (FDP/ZH), justified this by stating that "the seat in question, which has been settled, has already been awarded to the party in the main election. The party has shown that it can claim this seat and it was filled by the candidate who has now left. As a result, there should not be a new election in which the parties measure their strength again, but the party that counted the candidate who has left as one of its own should have the right to make proposals in the first instance without further ado."
3 With the introduction of the PRA in 1975, the supplementary election system was adopted but revised: As 50 supporting signatures were now required for an election proposal, the Federal Council considered it "hardly possible for all 50 signatories to agree to submit a new proposal." For this reason, the provision only stipulated that a minimum number of 30 of the original signatories had to agree on a proposal. If a valid proposal is made, the proposed candidate is declared elected by the cantonal government without an election act. In the event that no proposal is made, a popular election is held; if there are several vacant seats, the provisions on proportional representation apply, otherwise those on majority voting apply.
4 In its dispatch for the new PRA, the Federal Council stated that "filling vacant seats by a small group of electors [...] is considered undemocratic". Nevertheless, he wanted to give preference to the previous system, as the balance of power between the parties determined during the overall renewal should not change during the entire legislative period. A popular election based on the majoritarian principle to fill a vacant seat would be objectionable, as shifts in seats "would naturally work to the disadvantage of the smaller parties". The National Council and Council of States followed the Federal Council's proposal without discussion or opposition.
5 Since coming into force, Art. 56 PRA has been revised twice. In the dispatch on the first revision in 1994, the Federal Council noted that the PRA requires at least 50 supporting signatures for an election proposal; however, the law does not specify a maximum number. However, if 60 or more eligible voters sign the nomination, two supplementary elections could possibly be held for a vacant seat without an electoral act. The Federal Council therefore proposed that instead of a quorum (30 signatures), a ratio to the original number of signatures should be set. Three-fifths of all signatories of the original election proposal who were still entitled to vote were proposed as a hurdle. The National Council and Council of States followed the Federal Council's suggestion.
6 The second revision of Art. 56 PRA followed in 2003, which was an adjustment to the simplification of the signature quorum introduced for registered parties (Art. 24 PRA). According to this simplification, the election proposals of registered parties only require the signatures of the presiding and executive members of the cantonal party in addition to the signatures of all candidates. This change necessitated an amendment to Art. 56 PRA: The right of nomination for supplementary elections for registered parties is exercised in these cases by the executive committee of the cantonal party. This amendment did not lead to any discussions in the National Council and Council of States. It was adopted by both Councils.
II. Comparison of laws
7 See in detail OK-Lehner, Art. 44 PRA N. 7 f.
III. Significance of the provision and content of the provision
8 The election of the National Council is based on the principle of proportional representation (Art. 149 para. 2 FC). Consequently, the PRA assumes that the mandates should remain the property of the respective list or party for the entire legislative period. In order to maintain the balance of power between the parties throughout the legislative term, the supplementary election procedure primarily provides for the signatories of the election proposal to be able to supplement the list (Art. 53 para. 1 PRA). In principle, there is no popular election (Art. 53 para. 2 PRA). This is only ordered if the right of nomination is not used (Art. 53 para. 3 PRA).
9 The supplementary election pursuant to Art. 56 PRA is not only used if a vacant seat in the National Council cannot be filled by succession pursuant to Art. 55 PRA, but also if a list obtains surplus mandates (Art. 44 PRA).
10 Since the introduction of proportional representation, there have only been three cases in which the rules on supplementary elections have been applied. The first two cases concerned supplementary elections immediately after the general election of the National Council in 1919 (see Art. 44 PRA today) and only one case concerned a supplementary election due to the impossibility of succession:
In 1919, the Catholic Conservatives in the canton of Fribourg won one more seat than there were candidates on the list. As a result, Ernest Perrier (CC/FR) was elected to the National Council without an election.
Also in 1919, the Social Democratic Party (SP) in the canton of Schaffhausen won one more seat than there were candidates on the list. As a result, Jakob Hefti (SP/SH) was elected to the National Council by the corresponding electoral college.
Josef Diethelm (SP/SZ) was elected to the National Council in 1959. His last re-election to the National Council was in the 1975 general elections, when he was the only candidate on the list of the Social Democratic Party of the Canton of Schwyz. Diethelm died in office on December 29, 1978. As there was no other candidate on the original SP list, it was impossible for a replacement to stand. As a result, 28 supporters of the SP election proposal nominated Alois Kessler (SP/SZ) as National Councillor.
A. Para. 1: Right of nomination
11 Contrary to the name of the provision, in a supplementary election there is no free popular vote in the first step. Rather, the signatories of the election proposal should be able to supplement the list. Depending on the circumstances, two different groups have the right of nomination:
12 Firstly, the right of nomination accrues to the signatories of the list in accordance with Art. 24 para. 1 PRA (first variant). Each election proposal must be signed by a minimum number of voters with political residence in the electoral district at the time of submission, whereby the minimum number of signatures varies depending on the size of the electoral district. Three-fifths of the signatories of the original election proposal (60 percent) are required for a valid election proposal for the supplementary election.
13 The procedure for a supplementary election pursuant to Art. 56 para. 1 variant 1 PRA is regulated in rudimentary form in Art. 16 VPR. If a supplementary election is held, the cantonal government of the relevant constituency invites the representative of the list entitled to nominate a candidate to submit an election proposal, setting a deadline of 30 days. For this purpose, the cantonal government shall provide the representative with a copy of the original election proposal, including the names and addresses of all signatories. The further procedure for submitting an election proposal is not regulated. It is therefore the responsibility of the representative of the election proposal (Art. 25 PRA) to bring about an election proposal that is signed by at least 60 percent of the original signatories within the set deadline.
14 If, on the other hand, the election proposal is submitted by a political party with administrative simplifications (Art. 24 para. 3 PRA), the cantonal party's executive committee has the right of nomination (variant 2). It is true that the original election proposal is only signed by the presiding and executive members of the cantonal party (Art. 24 para. 4 PRA). However, a resolution of the executive committee of the cantonal party is required for the submission of a valid election proposal in accordance with Art. 56 para. 1 PRA. The executive committee is the executive body of a party (see Art. 69 CC). The name of the executive committee and the procedure for passing resolutions are set out in the articles of association of the respective party.
15 The procedure regarding the supplementary election pursuant to Art. 56 para. 1 variant 2 PRA is not covered by Art. 16 VPR. However, the procedure can be applied analogously: The cantonal government must invite the executive committee of the relevant cantonal party to submit an election proposal, setting a deadline of 30 days.
B. Para. 2: Appointment without an election act
16 If an election proposal is validly made in accordance with Art. 56 para. 1 PRA, the proposed candidate is declared elected in the procedure for determining silent elections (Art. 45 PRA). No popular election shall be held on the election proposal of the undersigned or the executive committee of the cantonal party.
C. Para. 3: Popular election
17 If the right of nomination is not exercised by the signatories or the executive committee of the cantonal party, the cantonal government shall order a popular election for the vacant seat, irrespective of the reason for the omission. If several seats are to be filled, these are to be elected according to proportional representation (Art. 21 ff. PRA), otherwise a relative majority election is held (Art. 47 ff. PRA). In a popular election, it is possible that the party-political balance of power may change compared to the result of the general election.
D. Criticism and legal policy proposals
18 The supplementary election procedure pursuant to Art. 56 PRA has been described as undemocratic, particularly by the Federal Council. Not only does the procedure make a popular election impossible, it could also be offensive that a small group of signatories could single-handedly determine who becomes a member of the National Council.
19 It is therefore hardly surprising that the supplementary election procedure has met with criticism from academics. The supplementary election is described as constitutionally problematic, as the signatories of the election proposal can directly determine who becomes a member of the National Council. This means that there are no direct popular elections, as required by Art. 149 para. 2 sentence 1 FC. The supplementary election procedure serves to secure the mandates allocated to a party in the general elections. The securing of mandates by the parties thus takes precedence over the democratic legitimation of MPs through direct appointment by the voters.
20 According to René A. Rhinow, the situation became even more objectionable with the 2003 revision, as in some circumstances even a decision by a cantonal party executive would suffice for an "election" to the National Council. This would "de-democratize" the procedure. In addition, the legislator is not only disregarding the autonomy of the parties under association law, but is also interfering with internal party democracy. Normally, candidates for parliamentary elections are determined by party conventions, general meetings or delegate assemblies.
21 In principle, the doctrine is to be agreed with: The right of nomination in the context of "supplementary elections" is unconstitutional, as Art. 149 para. 2 sentence 1 FC requires the direct election of members of the National Council by the people. This is undermined by the right of nomination pursuant to Art. 56 para. 1 and 2 PRA.
22 In order to solve the problem in terms of legal policy, various options would be available: One option would be to abolish the right of nomination. If a vacant seat cannot be filled by succession, it would be filled by a direct popular election. However, this would inevitably lead to a subsequent debate on the election procedure to be used, particularly in the event of a vacancy. The relative majority election (Art. 56 para. 3 PRA in conjunction with Art. 47 para. 1 sentence 1 PRA), which is usually applied when a seat is vacant, would have to be rejected here. It would only favor large parties. In the case of single-member constituencies for the National Council election, the atypical majority election with a relative majority is only justified by the fact that the National Council election is to be held nationwide on a single date. This argument would no longer apply to a supplementary election.
23 Another option would be to place the supplementary election on a constitutional basis with a prior right of nomination in accordance with Art. 56 para. 1 and 2 PRA. This would solve the constitutional problems in particular. However, the accusation of "de-democratization" would then not be refuted. After all, other democracies with a long tradition also fill temporarily vacant seats in parliament to the exclusion of popular elections. Moreover, it should not be denied that the problem described is only of a temporary nature, as with each overall renewal of the National Council, the member in question can either be confirmed or voted out of office by the electorate.
24 Finally, it should be pointed out that the justified discussion surrounding the constitutionality of supplementary elections pursuant to Art. 56 PRA will remain purely theoretical in the future, as the practical relevance of Art. 53 PRA has remained extremely limited: since the introduction of proportional representation, there have only been three cases of application, two of them in the first year of application. The likelihood that a case of application of Art. 56 PRA will be repeated in the foreseeable future cannot be ruled out entirely, but it can be described as low.
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
Biaggini Giovanni, Bundesverfassung der Schweizerischen Eidgenossenschaft, Kommentar, 2. Aufl., Zürich 2017.
Gfeller Katja, Kommentierung zu Art. 47 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/bpr47, besucht am 10.10.2023.
Gfeller Katja, Kommentierung zu Art. 51 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/bpr51, besucht am 10.10.2023.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Lehner Irina, Kommentierung zu Art. 43 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/bpr43, besucht am 10.10.2023.
Lehner Irina, Kommentierung zu Art. 44 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/bpr44, besucht am 10.10.2023.
Markić Luka, Kommentierung zu Art. 54 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/bpr54, besucht am 18.10.2023.
Markić Luka, Kommentierung zu Art. 56 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/bpr56, besucht am 18.10.2023.
Rhinow René A., Nationalrat ohne Volkswahl? – Nachrücken von Parteignaden ein Akt gegen das Demokratieprinzip, in: Neue Zürcher Zeitung vom 12.12.2008, S. 18.
Thurnherr Daniela, Kommentierung zu Art. 149 BV, in: Waldmann Bernhard/Besler Eva Maria/Epiney Astrid (Hrsg.), Bundesverfassung, Basler Kommentar, Basel 2015.
Tschannen Pierre, Staatsrecht der Schweizerischen Eidgenossenschaft, 5. Aufl., Bern 2021.
Weber Anina, Schweizerisches Wahlrecht und die Garantie der politischen Rechte, Eine Untersuchung ausgewählter praktischer Probleme mit Schwerpunkt Proporzwahlen und ihre Vereinbarkeit mit der Bundesverfassung, Diss. Zürich, Zürich 2016.
Wyler Stefan, Kommentierung zu Art. 24 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/bpr24, besucht am 10.10.2023.