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- Art. 5a FC
- Art. 6 FC
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- Art. 29a FC
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- Art. 32 FC
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- 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
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- Art. 50 CO
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- 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
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- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
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- 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
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- 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
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- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
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- Art. 67a PRA
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- 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
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- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
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- Art. 39 FADP
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- Art. 51 FADP
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- 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 and significance
- II. Interpretation in Conformity with the Constitution and International Law
- III. Material Scope of Application
- IV. Personal scope of application
- V. Measures to enable persons with disabilities to vote
- VI. Assessment
- Bibliography
- Materials
I. History of origins and significance
1 Article 6 of the PRA mandates the cantons to take measures to enable persons with disabilities to cast their votes independently. The provision was already included in the draft law of 1975 and was intended to take account at the federal level of the "wish expressed for years by disabled persons [to] also enable physically disabled voters (e.g. blind, lame) to exercise their political rights".
2 The provision, which was uncontroversial at the time of its creation - namely, most cantons already knew corresponding procedures for people with disabilities - is somewhat outdated. In particular, with the ratification of the UN Convention on the Rights of Persons with Disabilities (BRK) in 2014, Switzerland has subjected itself to more far-reaching obligations towards persons with disabilities, which must be taken into account when interpreting Art. 6 PRA (n. 5 ff.). Beyond the interpretation in conformity with the Constitution and international law, a revision of this provision would also be appropriate (n. 30).
3 Art. 6 PRA serves to implement the constitutional entitlement, flowing from the guarantee of political rights (Art. 34 para. 1 FC), to make the exercise of the right to vote practically possible. This claim is directly applicable even without cantonal implementation measures. The Federal Supreme Court has recognized that in the conduct of elections and votes, the normal situation of larger sections of the population, even if they are minorities, must be taken into account as far as possible by ensuring that the exercise of their right to vote is not prevented by a substantial practical obstacle as a result of the special nature of the arrangement. This also increases the legitimacy of an election or vote. Not only the majority, but also the minority must be able to participate in elections and votes without being substantially impeded. According to the case law of the Federal Supreme Court, disregard of this principle violates not only the freedom to vote and to be elected, but also the principle of equality of rights. Finally, Art. 6 PRA is also to be understood as an implementation of the prohibition of discrimination on the basis of disability (Art. 8 para. 2 FC) as well as the guarantee of the political rights of persons with disabilities (Art. 29 BRK) (see in more detail n. 5 ff.).
4 In the case of voting facilitations such as the present one - but also others - the principle of the broadest possible accessibility of an election or vote, respectively the correct composition of the active citizenship, and the principle of secret election or vote are opposed to each other and must be weighed against each other. In particular, even in the case of voting facilitations such as proxy voting or postal or electronic voting, it must be ensured that no person entitled to vote casts his or her vote more than once and that no non-voting persons participate in the election or vote.
II. Interpretation in Conformity with the Constitution and International Law
5 Since the enactment of the PRA in 1978, both societal views towards persons with disabilities and the legal situation at the level of constitutional and international law have evolved significantly. Even a glance at the terminology, which has changed from "disabled person" to "handicapped person" to "person with disabilities", reveals that the aim today is to ensure the self-determined and equal participation of people with disabilities in society instead of treating them as passive recipients of benefits in need of assistance. In line with this changed understanding, the great importance of the political participation of people with disabilities is also increasingly recognized.
6 Article 8 para. 2 of the totally revised Federal Constitution prohibits discrimination "on the grounds of physical, mental or psychological disability". Consequently, persons with disabilities may not be discriminated against in the exercise of their political rights.
7 In addition, Art. 8 para. 4 FC obliges the legislature to take measures to eliminate discrimination against persons with disabilities. The legislature has implemented this mandate, among other things, by enacting the DDA, which is intended to eliminate disadvantages in access to public buildings and facilities, to public transport, to large residential or work buildings, to public and private services, to education and training, and in public employment. The DDA applies to elections and votes under federal law. Their implementation constitutes a "service that can be claimed by everyone" of the community in the sense of Art. 3 lit. e DDA. However, the legislative mandate of Art. 8 para. 4 FC is not exhausted with the enactment of the DDA. In particular, it would be open to the legislator to update Art. 6 PRA in application of this mandate (see n. 30).
8 Of great importance for the interpretation of Art. 6 PRA is the UN Convention on the Rights of Persons with Disabilities (BRK), which Switzerland ratified in 2014. Article 29 of the BRK guarantees the political rights of persons with disabilities. According to this provision, the signatory states must ensure that persons with disabilities can participate effectively and fully in political and public life on an equal basis with others, which also includes the right and opportunity to vote and be elected. In addition to abolishing discriminatory laws and dismantling exclusions of persons with disabilities from the right to vote, which still exist in many States Parties - including Switzerland (Art. 136 para. 1 FC; see OK-Seferovic Art. 2 PRA) - Art. 29 BRK mainly obligates the elimination of the numerous de facto barriers to political participation of persons with disabilities by means of proactive measures, so that persons with disabilities are enabled to participate in decision-making processes in political and public life on an equal basis with others. Among other things, Art. 29 lit. a BRK obliges states to provide electoral procedures, facilities and materials that are appropriate, accessible, easy to understand and to use. Similarly, under this provision, States must protect the freedom of persons with disabilities to vote and to choose, using assistive and new technologies where appropriate, and, when necessary and requested, persons with disabilities may be assisted in voting by a person of their choice.
III. Material Scope of Application
9 In substantive terms, Article 6 of the PRA extends to elections and voting on federal matters. Most cantons provide for voting facilitations, as prescribed in Art. 6 PRA, also for cantonal and communal elections and votes (see n. 19 below). In this way, they fulfill their obligations to implement Art. 29 BRK and Art. 8 para. 2 FC to ensure equal participation in elections and votes.
10 As far as can be seen, not a single canton provides by law for facilitation of voting by persons with disabilities in assembly democracy, namely at Landsgemeinden and/or municipal assemblies. Art. 6 PRA, which only covers federal elections and votes, is admittedly not applicable to these situations. However, the provisions of constitutional and international law are relevant and must be implemented in practice if necessary. To date, there have been no systematic studies on the existence of corresponding legal facilitations in municipal decrees.
11 The acts necessary for voting are to be facilitated. The wording of Art. 6 PRA does not cover the processes of political decision-making that occur in the run-up to voting, even though persons with disabilities, especially those with cognitive impairments, also require support in this respect in order to be able to exercise their political rights on an equal footing with others.
12 Also excluded from the scope of application is the signing of referendum petitions and initiatives, for which persons with disabilities may also require support measures. In this regard, Art. 61 para. 1bis PRA contains a facilitation for voters who are unable to write.
IV. Personal scope of application
13 The addressees of the provision are the cantons. They must ensure that persons with disabilities (see n. 14 ff. below) can participate in elections and votes on federal matters.
14 According to its wording, the personal scope of application of Art. 6 PRA - with the exception of persons excluded from the right to vote under Art. 2 PRA - includes persons who are "permanently incapable, because of disability or for any other reason, of performing the acts necessary for voting themselves". The terminology is, as mentioned (n. 5), outdated. In accordance with its objective, the provision of Art. 6 PRA must today be interpreted in conformity with the Constitution and international law to the effect that it is not limited in its personal scope of application to "disabled persons" within the meaning of the IVG. Rather, the more modern definition of Art. 1 para. 2 BRK must be taken into account. According to this provision, persons with disabilities are those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may prevent them from participating fully, effectively and equally in society. This BRK definition is intentionally open-ended, recognizing that the understanding of disability is constantly evolving. This social model of disability recognizes that disability arises from the interaction between biological impairments and societal barriers that prevent the person from participating fully, effectively, and equally in society.
15 In light of this human rights-based definition of "disabilities," the personal scope of Article 6 must be understood to extend to all persons who, because of a long-term physical, mental, intellectual, or sensory impairment and in interaction with various barriers, are prevented from performing by themselves the acts necessary to vote. This interpretation is readily compatible with the wording of the provision, which in addition to "incapacitated persons" also covers all those who "for some other reason" cannot independently exercise their right to vote. Several cantons also use the newer terminology in their implementing legislation and speak of "persons with disabilities" or "handicapés".
16 It also follows that the personal scope of application is not limited to people with physical impairments. The fact that the legislator at the time of its creation had mainly this group in mind when he spoke of "blind and lame" in the 1975 dispatch is no longer relevant in the context of the interpretation at the time of application as well as the interpretation in conformity with constitutional and international law. Rather, it would constitute unjustified unequal treatment within the meaning of Art. 8 para. 2 FC, Art. 2 para. 2 DDA and Art. 2 para. 3 BRK to grant voting facilities only to persons with physical disabilities and not to persons with mental or psychological disabilities. Cantons that limit their implementing legislation to persons who are incapable or unable to write within the meaning of Art. 5 para. 6 PRA (cf. n. 19) have not fully complied with the legislative mandate of Art. 6 PRA.
17 By contrast, Art. 6 PRA does not extend to persons who are prevented from political participation due to a temporary health restriction. Both the wording of Art. 6 PRA ("permanent") and that of the BRK definition ("long-term") make it clear that temporary disabilities (such as those due to bedriddenness or hospitalization) are not covered by the provision. However, some cantons also provide for facilitation of voting for citizens who are ill or have had an accident, by allowing voting at home or in homes ("traveling urns").
V. Measures to enable persons with disabilities to vote
18 Article 6 of the PRA contains a legislative mandate to the cantons, since it is they that are entrusted with conducting federal elections and votes. Federal law does not specify certain cantonal measures, but rather a result to be achieved, namely "that also those who, because of [a disability], are incapable of performing the acts necessary for voting themselves, may vote." Federal legislation in any case leaves it largely to the cantons to regulate the voting procedure, and thus the legislature already stated at the time of its creation in 1975 that it would not make sense to prescribe a specific system for facilitating the voting of "disabled" persons from the federal side, since most already knew a corresponding procedure for cantonal votes. Most cantons implemented the legislative mandate of Article 6 of the PRA in their cantonal laws on political rights, choosing various measures. Since this is a direct constitutional right of persons with disabilities (n. 3 above), in cantons without sufficient legal regulation, the practice has to make do.
A. Genuine and non-genuine substitution
19 All cantons that have a regulation provide for some form of representation. A distinction must be made between "genuine" and "non-genuine" representation, whereby these are sometimes merged in the cantonal regulations. In the case of genuine proxy voting, the proxy fills in the ballot paper of the represented person himself and takes it to the ballot box. In the case of non-genuine proxy voting, the proxy merely brings the ballot paper to the polling station and places it in the ballot box. These regulations refer to voting at the ballot box; on the other hand, there are no cantonal regulations on proxy voting in assembly democracy (n. 10 above). The following variants can be observed:
Most cantons allow persons with disabilities - although here the groups vary, some cantons restrict themselves to persons incapable or unable to write within the meaning of Art. 5 para. 6 PRA, which as mentioned above (n. 16) is not sufficient - to be assisted or represented in filling out the ballot.
Similarly, many cantons allow voting to be carried out by a proxy or the person concerned to be assisted in some other way, for example by allowing severely disabled voters to hand over their ballot paper to a person with an official function in the case of voting rooms that are not wheelchair-accessible. The Federal Supreme Court specifies that the messenger of the ballot paper of an elderly, disabled or ill person entitled to vote may neither arbitrarily change the ballot paper handed over to him nor replace it with another ballot paper. His only function is that of a messenger.
Three cantons provide for the possibility of voting, on request, in the presence of a delegation of the electoral office at the home of the person concerned or in homes and hospitals.
One canton provides in a general manner that persons with disabilities may be assisted by a person elected by them in exercising their right to vote.
20 In this context, assistance in voting is provided either by a person chosen by the person concerned (often in the case of postal voting) or by a person with an official function (often in the case of voting at the polling station).
21 If the ballot paper is filled in by another person (genuine proxy voting), the secrecy of the vote is no longer maintained vis-à-vis the proxy. Several cantons therefore explicitly prescribe an obligation for the proxy person to maintain silence. In the literature, a corresponding amendment to Art. 6 PRA has been called for.
22 A further problem in connection with acts of assistance in filling in ballot papers is the risk of undue influence on the person entitled to vote or abuse of helplessness. Especially in the case of persons with mental disabilities, the problem of influence is often discussed. However, this should not obscure the fact that a danger of influence exists wherever dependency relationships exist, for example within families and civil partnerships or in homes. In an older ruling, the Federal Supreme Court considered the risk to be low that a deputy exceeds his or her powers if the voter concerned has selected him or her himself or herself. Some cantons explicitly postulate a prohibition of influence by proxy.
23 The rule that no one may act as proxy for more than one person also serves to prevent abuses, and some cantons also have an express prohibition on more extensive or organized proxy voting. According to the case law of the Federal Supreme Court, such proxies are inadmissible in themselves and, depending on their extent, may lead to the annulment of an election or vote.
B. Vote électronique
24 Electronic voting could make life easier for people with visual or mobility impairments in particular, as it would allow them to cast their vote without assistance and thus in compliance with the secrecy of the ballot.
25 According to Art. 27g para. 1 VPR, the process of electronic voting must be designed in such a way that the needs of voters who are unable to cast their vote autonomously due to a disability are taken into account. The Federal Chancellery may provide for facilitations for voters with a disability, provided that this does not significantly restrict security (Art. 27g para. 2 VPR). According to no. 4.10. of the Annex to the VEleS, facilitations may be provided for persons with a disability who are entitled to vote in order to check the evidence, and according to no. 6.1. the voting cards must, as far as possible, be designed in such a way that they allow voters with a disability barrier-free access to electronic voting.
26 However, proxy voting is prohibited in the case of electronic voting (Art. 27h para. 2 VPR).
VI. Assessment
27 The material scope of application of Art. 6 PRA is relatively narrow, being limited to voting in elections and referenda. This focus may be justified by the history of its origin, but no longer appears justified today in view of legal developments.
28 In particular, it must be taken into account that Switzerland, by ratifying the BRK, has committed itself to comprehensively guaranteeing the political rights of persons with disabilities. Art. 29 BRK not only obliges states to abolish discriminatory laws that exclude persons with disabilities or certain groups (namely persons with psychosocial or cognitive disabilities) from the right to vote. (cf. Art. 2 PRA) Rather, positive measures are intended to enable persons with disabilities to participate on an equal basis with others in decision-making processes in political and public life. In addition to the possibility of being assisted by a trusted person, this also includes, among other things, the accessibility and comprehensibility of election materials (for example, in easy language, as an audio file, in sign language or in Braille), the accessibility of polling stations and other places of political decision-making and expression, the encouragement of political parties to make their programs easily accessible and comprehensible, or the targeted political education of persons with disabilities. Recognizing that there is not one form of disability, but that the needs of people with disabilities vary, is of great importance. In practice, the focus is still too often exclusively on physical and sensory impairments, while support measures for the political participation of people with intellectual or mental impairments often do not exist.
29 A variety of additional measures to ensure the political rights of persons with disabilities would therefore be needed. The UN Committee on the Rights of Persons with Disabilities, which reviews state reports on the implementation of the BRK, has recommended that Switzerland ensure that electoral procedures are accessible to all persons with disabilities. However, Art. 6 PRA covers only a part of this, and the factual (as opposed to the personal) scope of application of Art. 6 PRA cannot be extended beyond the clear wording, even with an interpretation in conformity with the constitution and international law. It thus remains the case that Art. 6 PRA only prescribes facilitation for a limited aspect of voting by persons with disabilities. Certain other aspects arise from the DDA: For example, in their dealings with the population, the federal authorities must take into account the special concerns of people with hearing, visual and speech impairments (Art. 14 para. 1 DDA). Insofar as it is compatible with the principle of proportionality (Art. 11 DDA), information on political rights must therefore be prepared in a form that makes the information suitable and accessible to voters with disabilities. Some work is currently being done in this area (e.g. explanatory videos on elections and votes in sign language, voting information as an audio file or in plain language), but in general more should be done, even under the current regime, to facilitate or enable the exercise of the right to vote by persons with disabilities. Special measures would also be required if the currently applicable exclusions from voting rights (Art. 2 PRA) were abolished.
30 A revision of Art. 6 PRA or an addition to the PRA to include additional provisions to actually guarantee the political rights of persons with disabilities would therefore be desirable. In view of the diversity and situationally changing nature of "disability" (above n. 14), a conclusive regulation of measures at the legislative level is neither feasible nor sensible; rather, a statutory framework regulation is imperative, which prescribes the essential elements while at the same time preserving the leeway necessary for the application of the law to take into account the different needs of persons with disabilities. Essential elements in this sense are the obligation to take measures to facilitate voting for all persons with disabilities, as well as to enable and promote their political decision-making. When enacting these norms, care must be taken to ensure that this takes place with the involvement of persons with disabilities as well as their organizations, as stipulated in Art. 4 para. 3 BRK.
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Materials
Botschaft vom 9.4.1975 zu einem Bundesgesetz über die politischen Rechte, BBl 1975 I S. 1317 (zit. Botschaft BPR).
Botschaft vom 19.12.2012 zur Genehmigung des Übereinkommens vom 13. Dezember 2006 über die Rechte von Menschen mit Behinderungen, BBl 2013 661 (zit. Botschaft BRK).
Bundesrat, Behindertenpolitik. Bericht vom 9.5.2018.
Bundesrat, Réponses de la Suisse à la Liste de points concernant le rapport initial CDPH, CRPD/C/CHE/RQ/1, 16.10.2020 (zit. Réponses de la Suisse).
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