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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
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- Art. 31 para. 2 lit. e FADP
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- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
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- 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
A. Before 1978
1The question of proof of voter status arose as early as the introduction of referendum and initiative rights in the 19th century. Art. 5 of the Federal Act on Popular Voting on Federal Acts and Decrees of June 17, 1874 (hereinafter referred to as the 1874 Act) stipulated that, in order to sign a request for a referendum, the right to vote of the signatories had to be "certified by the communal authority (Gemeindevorstand) of the place where they exercise their political rights". The deadline for collecting signatures was then 90 days from publication of the law or decree in the Federal Gazette.
2 The Federal Act of January 27, 1892 on the Procedure for Popular Initiative Applications and Voting on the Revision of the Federal Constitution (hereinafter referred to as the 1892 Act) stipulated in art. 4 ch. 3, that in order to be valid, the list had to "contain, at the end, a dated attestation from the commune president (syndic, mayor) or his substitute, stating that the signatories [were] able to vote in federal matters and that they [exercised] their political rights in this commune. This certificate is issued free of charge".
3 Noting that irregularities in the attestations were leading to the cancellation of a large number of signatures, the Federal Council sought to remedy the situation by issuing the regulation concerning requests for popular votes on federal laws and decrees and for revision of the federal constitution of February 23, 1897 (hereinafter referred to as the 1897 regulation). These regulations clarify both the 1874 and 1892 laws and ensure their uniform application. The question of who should certify the signatories' right to vote was clarified. Although the legislator had used the expression "communal authority" in the 1874 law and "commune president" in the 1897 law, there was no indication that he had intended to introduce a different procedure. Art. 2 of the 1897 regulation stipulates that "the right to vote of the signatories must be attested by the communal authority of the place where they exercise their political rights. This attestation must appear at the foot of each list in approximately the following form: "The undersigned, president (or other title) of the commune of ..., attests to the voting rights of the ... (number) signatories of the present list and declares that they exercise their political rights in this commune (date, signature, indication of the official capacity of the official who signed and stamp)".
4 When the 1892 law was revised in 1963, the wording of art. 4 was slightly modified and supplemented in order to facilitate the task of the communal authorities responsible for issuing the attestation required by law. Once again, it was pointed out that the main cause for the cancellation of signature lists lay in the inadequacy of the attestation, "which always provoked unpleasant discussions between the administration and the authors of the initiative". For this reason, the formalities already enumerated in the 1897 regulation (to which the validity of the official attestation of the lists is subject) are now set out in art. 4 al. 1 let. d of the 1892 law: "at the end of the list, the attestation of the competent authority according to cantonal law, stating that the signatories are qualified to vote in federal matters and that they exercise their political rights in the commune indicated on the list. This attestation, issued free of charge, must be dated, indicate in letters or figures the number of signatures to which it refers, be signed by the magistrate or civil servant who affixed it, and mention his or her official position by means of a stamp or an addition".
B. Entry into force of the LDP in 1978
5 Art. 62 of the LDP, which came into force in 1978, reiterated, in paragraphs 1 to 3, the requirements for attesting voter status set out in art. 5 of the 1874 law and art. 4 of the 1892 law. The LDP also introduced two new features.
6 The first new feature, enshrined in art. 62 para. 4 of the LDP, is the possibility of collectively certifying several lists of signatures "in response to repeated requests". Art. 19 of the Ordinance on Political Rights of May 24 1978 (ODP) sets out the details of collective certification.
7 The LDP also introduced the possibility of correcting defects in the attestation if the success of the referendum depended on it (art. 65 aLDP). It was also possible to eliminate such defects even after the referendum deadline had expired. Art. 19 para. 4 aODP stipulated that if a service was unable to issue an attestation within the required timeframe, it was to mention this on the list, indicating the date of receipt. The possibility of subsequent correction of attestation defects was abolished in 1997.
C. 1997 revision
8 In 1996, a partial revision of the federal legislation on political rights was proposed, following the observation that "the occasionally enormous and unpredictable use made of political rights by some citizens" since the early 1990s (particularly with regard to requests for referendums and popular initiatives) had placed the communes and cantons (especially the more populous ones), but also the federal authorities, "in a situation that sometimes bordered on the limits of their capacities". In particular, in 1992, the backlog of referendum applications (there were no fewer than nine) posed major problems not only for those responsible for collecting signatures, but also, in some cases, for municipal electoral registrars, "especially during the festive season, despite the fact that the Federal Chancellery had sent them several circulars warning them of the difficulties they would encounter and suggesting preventive measures".
9 The most striking example was the request for a referendum against the Federal Decree on the construction of the Swiss rail link through the Alps of October 4, 1991 (NRLA): lack of time prompted the referendum committees to ask the communes to send the authenticated signatures directly to the Federal Chancellery, which hundreds of them did. The Federal Chancellery declared itself prepared to recognize as valid the signatures coming directly from the communes, provided that the items were postmarked no later than January 13, 1992 (the date on which the legal referendum deadline expired). On the other hand, it considered that any other concession could not be reconciled with the law. The referendum was narrowly defeated.
10 In this context, art. 65 aLDP, which required the competent authority to remedy defects in the certificate if the outcome of the referendum depended on it, and to eliminate such defects even after the referendum deadline had expired, was repealed. The same applies to art. 19 para. 4 aODP. In return for these repeals, referendum committees were given ten extra days to collect signatures and have them certified. The referendum deadline was extended from 90 to 100 days. Art. 59 aLDP expressly stipulated that, "in the case of popular referendums, the referendum deadline includes the drawing up of certificates of elector status". These amendments came into force on April 1, 1997.
11 This solution was preferred to various proposals aimed at making the authorities responsible for collecting certificates of voter status from signatories; given the pace at which popular rights are exercised, such a rule would have had the effect of overloading and paralyzing the sparsely-staffed department concerned, not to mention the problems involved in setting up checks and appeals, as errors were inevitable given the mass of documents to be processed.
In 1960, the Federal Council had already argued against the possibility of the federal authorities being obliged to return lists with defective certification to the initiators of the initiative or to the communal authorities; it had already mentioned that it was up to the initiators of the initiative to ensure that the certificates were sufficient, all the more so as the communal authorities returned the lists to the initiative committee, which in turn returned them to the Federal Chancellery.
12 In 2005, the Federal Supreme Court clarified that Art. 62 para. 1 aLDP stipulated that, in the case of popular initiatives, proof of voter status had to be obtained by the initiators from the relevant authorities before the deadline for signature collection had expired, and that there was no longer any possibility of post-clearance verification.
The Federal Chancellery had rejected a request from a member of the initiative committee to ensure that no signatures were declared invalid due to shortcomings in the voter registration documents, and to take responsibility for rectifying any such shortcomings. The committee member then lodged an appeal with the Federal Supreme Court against the Federal Chancellery's decision. He argued that many communes had sent back defective certificates and that the initiative committee did not have the financial and personnel resources to repair these defects. The federal judges recalled that the possibility of providing proof of voter status after the fact, as it resulted from art. 65 aLDP as it stood on December 17, 1976, had been repealed in 1997; it resulted from art. 62 al. 1 aLDP (in conjunction with art. 71 al. 1 and art. 72 al. 2 let. b LDP) and its genesis that it was up to the initiators to obtain certificates of voter eligibility; the Federal Chancellery could not issue or correct defective certificates after the fact; the deadline for collecting signatures covered, according to the clear will of the legislator, both the collection of signatures proper and the obtaining of certificates of voter eligibility; initiative committees had to take this into account when collecting signatures.
D. 2015 revision
13 The wording of paragraph 1 of art. 62 LDP was amended in the revision of September 24, 2014, which came into force on November 1, 2015. The original version stipulated that signature lists had to be sent "sufficiently early" before the referendum deadline expired, whereas according to the current version signature lists must be sent "as and when required, but in any case sufficiently early".
14 Collecting certificates of voter eligibility as and when required largely avoids the risk of exceeding the deadline for submitting certified signatures, and also has the advantage of reducing peak workloads for the relevant authorities.
15 This change was prompted by the fact that, in 2012, popular rights were exercised particularly frequently: 50 popular petitions (referendum applications and initiatives) were submitted. Never before had the Federal Chancellery had to record so many unsuccessful popular petitions: three requests for referendums against the tax agreements with Germany, the UK and Austria, and one popular initiative. The decision to reject the request for a referendum against the tax cooperation agreement with the UK was appealed to the Federal Supreme Court. In its ruling of June 5, 2013, the Federal Court upheld the decision not to proceed with the referendum and held that it was the responsibility of the signatories of the referendum application to provide sufficient proof of their electoral status (see N 49 below).
16 Against this backdrop, on October 19, 2012, the Political Institutions Committee of the National Council (CIP-N) tabled a motion (motion 12.3975). It instructed the Federal Council to submit to Parliament a draft amendment to the Federal Act on Political Rights providing for different deadlines for, on the one hand, the submission by referendum committees and initiative committees of signatures for referendums and popular initiatives and, on the other, the certification of these signatures. The National Council passed on the motion, while the Council of States rejected it because it wanted to wait for the Federal Council's message.
17 From March 8 to June 30, 2013, the Federal Council put out to consultation a proposal to amend art. 62 para. 2 of the LDP, stipulating that the service must return all lists sent to it before the 81st day of the referendum deadline by the 95th day. He also proposed adding a paragraph 2 to art. 70 of the LDP, under which the department would return by the first day of the 17th month of the deadline for the collection of signatures all lists of signatures in support of a popular initiative that had been submitted to it before the first day of the 14th month for certification of voter eligibility.
18 This proposal was based on the idea that the majority of signatures could then be submitted for certification before the first four-fifths of the deadline, and that the work overload experienced by municipalities when referendums and initiatives are multiplied, or on public holidays, could be avoided, automatically increasing the chances that signatures submitted at the last minute would nevertheless be taken into account for certification. This would have provided initiative and referendum committees, in particular, with much greater planning security. However, this proposal received a mixed reception during the consultation procedure: while the proposed regulations went much too far for cantons, towns and municipalities, some users criticized them as being too timid.
19 As a result, the Federal Council abandoned its proposed amendment in November 2013. Instead, it opted for a comprehensive approach to organization and information procedures, based on the legislator's original intention, which required both that signatures be handed in for certification sufficiently in advance of the deadline and that certified signatures be returned to the sender without delay (art. 62 para. 2 and 70 LDP).
20 In the final analysis, the legislator has deliberately refrained from setting a precise deadline for issuing certificates of elector status. It did, however, stipulate that the lists of certified signatures must be returned to the senders without delay. This takes account of the fact that the number of signatures to be certified can vary greatly from one department to another. Many years of experience have shown that an experienced person can issue 350 to 400 certificates per day. The new version of art. 62 para. 1 of the LDP, moreover, takes up what the Federal Court had explicitly confirmed in its ruling of June 5, 2013 (see supra N 15 and infra N 49).
21 Also in 2015, in response to a strong demand expressed during the consultation procedure, the Federal Chancellery, in collaboration with the Swiss Conference of State Chancellors, drew up an aide-memoire for authorities responsible for electoral registers. It has also revised the guidelines for authors of federal referendums and popular initiatives, to make them easier to understand. The aim of the vade-mecum is to encourage diligence on the part of popular petition committees, to reduce the peaks in activity with which the competent authorities are confronted, and to clarify the handling of evidence.
II. Importance of the provision
A. General
22 Art. 62 of the LDP, entitled "Attestation of voter status", has had four paragraphs since its inception. Paragraphs 2, 3 and 4 of art. 62 LDP still have the original content.
23 Art. 62 LDP is located in Title 4 of the LDP, devoted to referendums. However, it also applies to popular initiatives, by reference to art. 70 of the LDP. Similarly, art. 26 ODP on popular initiatives also refers to arts. 19 and 20 ODP (in the chapter on referendums).
24 Art. 62 of the LDP specifies the procedures to be followed when certifying voter status. The certification of signatures on lists takes place after the signatures have been collected (art. 61 LDP) and before the final decision (art. 66 and 67b LDP for referendums and art. 72 LDP for initiatives).
25 The Confederation delegates to the cantons the task of certifying the electoral status of signatories to federal referendum and popular initiative applications. In most cantons, the communes are responsible for providing this certification.
26 The requirements for voter registration apply to both federal constitutional initiatives requesting total revision (art. 138 Cst.) and those requesting partial revision (art. 139 Cst.). They also apply to all the types of referendum requests listed in art. 141 Cst. (referendum on federal laws, federal laws declared urgent and valid for more than one year, federal decrees insofar as the Constitution or law so provides, and certain international treaties).
27 The scope of art. 62 of the LDP is considerable, as the granting of signature certification is a procedural condition for the success of a referendum request or initiative. In order to establish whether a referendum application or initiative has been successful, the Federal Chancellery checks, among other things, that the certificate of elector status has been duly submitted (art. 21 ODP). The success of the initiative itself is a condition for submission to the popular vote.
28 Art. 62 of the LDP, as a rule organizing political rights, enjoys the protection afforded by the guarantee of political rights (art. 34 para. 1 Cst.). The credibility of political rights depends on the way in which certificates of voter eligibility are processed. This is a central procedural requirement for the exercise and guarantee of political rights in Switzerland. This makes it a key issue for the functioning of direct democracy.
Voter certification, insofar as it ensures that only members of the electorate sign initiatives or referendum applications (and that they sign them only once), is also protected by art. 34 para. 2 of the Swiss Constitution, which includes the right to know the exact composition of the electorate (who signed the referendum or initiative application). It is a basic condition for guaranteeing a voting result that reflects the free and undistorted will of the electorate. It creates confidence and therefore serves to ensure that the result of the vote is accepted.
29 An appeal concerning the right to vote (Stimmrechtsbeschwerde) may be lodged with the cantonal government for violation of art. 62 LDP (art. 77 al. 1 let. a LDP). The appeal must be lodged within 3 days of discovery of the grounds for appeal, but no later than the 3rd day after publication of the results in the official cantonal gazette (art. 77 al. 2 LDP). The decision of the cantonal government may be appealed to the Federal Supreme Court (art. 80 al. 1 LDP and art. 82 let. c LTF).
An appeal to the Federal Supreme Court against the decision of the Federal Chancellery concerning the non-completion of an initiative or referendum may also be lodged in connection with the attestation of voters (art. 80 al. 2 LDP and art. 82 let. c LTF). Thus, if the Federal Chancellery declares a popular initiative or referendum unsuccessful due to an insufficient number of valid signatures, the organizing committee may appeal to the Federal Supreme Court. The organizing committee may complain that the lists of signatures accompanied by the voter's certificate were returned too late, or that the nullity of certain signatures was not clearly indicated.
30 From a criminal point of view, the authority responsible for certifying signatures is acting in an official capacity and falls under the qualified offence of art. 282 ch. 2 StGB, under which anyone who falsifies the number of signatures collected in support of a request for a referendum or initiative, in particular by adding, modifying, deleting or crossing out signatures, or by counting signatures incorrectly, will be punished by a custodial sentence of up to three years or a fine of at least 30 days. Refusal to authenticate signatures and the deliberate use of a list of invalid signatures are also punishable under art. 282 ch.1 III of the Swiss Penal Code. The result of the signature collection must have been altered and have influenced the outcome of the initiative or referendum. Since electoral fraud is an intentional offence, simple miscalculations in the counting of signatures do not constitute an offence.
31 The collection of signatures by electronic means (E-Collecting) has been discussed on several occasions, but is not permitted. In such cases, certification of voter eligibility should also be carried out electronically. The basic prerequisite for this is the electronic management of voter registers.
B. Comparative cantonal law
32 The concept of attestation of voter status is found in all cantonal legislation. The cantons have enacted provisions similar to those of art. 62 of the LDP, albeit with some specific features. Political rights in cantonal and communal matters may differ from those in federal matters. The cantons also distinguish between cantonal initiatives and requests for referendum, and those of communal scope.
33 All cantons have delegated the task of certifying signatures in connection with cantonal popular rights to the communes, with the exception of Appenzell Innerrhoden (whose State Chancellery is in principle responsible for issuing certificates of voter eligibility) and Geneva (which delegates this responsibility to the Service cantonal des votations et élections). In cantons which have delegated signature control to the communes, the competent communal authority is designated by different terms (see N 52 below).
34 As at federal level, certification is free of charge.
35 The reason for declaring a signature invalid must be stated.
36 In most cantons, the attestation must be made before expiry of the signature collection period. Some cantons, such as Solothurn, Bern and Valais, expressly stipulate a time limit within which the competent authority must certify signatures. In other cantons, it is stated that signatures must be returned as quickly as possible or immediately.
37 In some cantons (especially French-speaking ones), however, certification may be carried out after the referendum or collection deadline has passed. In the canton of Vaud, for example, attested signature lists must be returned by the municipality to the senders within two weeks of the expiry of the submission deadline; within three weeks of the expiry of the submission deadline, the authors of the referendum or initiative request must submit all signature lists to the department. In the canton of Fribourg, the communes have 20 days after submission to check the lists of signatures for an initiative and 5 days for a referendum, and return them to the cantonal Chancellery.
In the canton of Berne, lists must be sent to the responsible department for certification no later than three months after publication of the referendum item; lists must be returned to their senders with certification no later than three weeks after the date of receipt.
In the canton of Neuchâtel, it is specified that when the certification of signatures cannot be made before the date of submission of the initiative, the communal authority certifies the submission of the lists and the provisional number of signatures.
38 Many cantons, such as Vaud, Neuchâtel, Valais, Solothurn, Aargau, Schaffhausen, St. Gallen, Basel-Landschaft and Graubünden, require the authority responsible for certifying signatures, or the cantonal chancellery, to remedy any shortcomings in certification under certain conditions, in principle if the success of the initiative depends on it. This option no longer exists at federal level.
39 The possibility of issuing a collective attestation is provided for in many cantons.
40 In some cantons, such as Solothurn and Fribourg, it is expressly stated that an appeal to the Administrative Court or the Cantonal Court may be lodged against refusal of attestation.
41 In the canton of St. Gallen, a legislative project is underway to create the legal basis for electronic signature collection for cantonal initiatives and referendums (E-Collecting). Both the technical implementation and the legislative project should be completed by early 2025. E-Collecting pilot tests could therefore begin in the first half of 2025. In June 2023, the State Chancellery of the Canton of St. Gallen issued a public invitation to tender for the technical implementation of the E-Collecting platform. On this platform, citizens of the Canton of St. Gallen will in future be able to support the collection of signatures by affixing an electronic signature. The signature will automatically check whether the signatory is actually eligible to vote, and whether he or she has already supported the initiative or referendum in question. Certification of voter eligibility will thus also be carried out electronically.
III. Commentary
A. Paragraph 1: tasks of the authors of the referendum request or initiative
42 Paragraph 1 of art. 62 of the LDP is an explanatory provision, describing when (para. 2) and to whom (para. 3) the lists of signatures (para. 1) must be sent. This paragraph is addressed to the authors of the referendum request or initiative, who are responsible for complying with these requirements. It is up to them to send in the signature lists as and when required, and at least sufficiently in advance of the expiry of the referendum deadline.
1. "Signature lists
43 The object of the attestation is the signature list. The content of the signature list is specified in art. 60 LDP for referendums and art. 68 LDP for initiatives.
44 Any citizen (not just the committee) may send lists of signatures to a local authority for certification.
45 Lists of signatures to be certified must be sent by post or delivered by hand to the relevant cantonal authority.
2. Deadlines "as and when required, but in any event sufficiently in advance of the referendum deadline".
46 Art. 62 para. 1 of the LDP stipulates that signature lists must be sent "as and when required, but in any case sufficiently in advance of the referendum deadline".
The purpose of the deadline set out in art. 62 para. 1 of the LDP is to encourage the submission of lists of signatures for the certification of voter status well in advance of the deadline, in order to avoid the work overload experienced by communes in the event of a proliferation of referendums and initiatives. This gives referendum and initiative committees greater planning certainty.
47 Art. 62 para. 1 aLDP, in its original version in force until November 1, 2015, stipulated that signature lists had to be sent "sufficiently in advance" before the deadline expired. The 1975 message already specified that lists or signature cards should not be presented to the attestation too shortly before the expiry of the referendum deadline; consideration had to be given to the time materially necessary for the authority to carry out its work. It was already specified that it was advantageous to submit the lists in successive mailings to the competent authority.
48 The legislator added the phrase "as and when required" in 2015. This is an organizational injunction. One of the reasons for this addition was that, in 2012, the Federal Chancellery had declared that the request for a referendum against the tax cooperation agreement with the UK had failed for lack of sufficient signatures. The lists of signatures had been submitted to the cantonal office responsible for certification on the 97th day of the deadline. The cantonal office had taken special measures to issue the voter's certificates quickly, in that its staff had worked for 2 days from 7am to 10pm. The task was completed on the 99th day of the deadline. The cantonal service had then mistakenly sent the signature lists back by B Mail, and the attestations had arrived after the referendum deadline had expired.
49 On June 5, 2013, the Federal Supreme Court rejected the appeals lodged against this decision by the Federal Chancellery. It held that art. 59a and 62 para. 1 and 2 aLDP, the legislator had intended to make the authors of the referendum request responsible for the timely submission of signatures accompanied by certificates of voter eligibility; it was up to them to organize the collection of signatures and then their transmission to the service responsible for certifying their validity, in such a way that they could collect them in time and then submit them to the Federal Chancellery within the 100-day time limit; it was also incumbent on the authors to agree with the service, if necessary, that the attested signatures would be kept at their disposal rather than returned by post; their organization and planning had to anticipate delays and unforeseen circumstances that might arise in the checking and forwarding of signatures; only extraordinary situations such as strikes, natural disasters or malicious behaviour on the part of the checking authorities were reserved.
The High Court considered that the submission of a large number of signatures on the 97th day of the deadline did not guarantee that these signatures could still be returned before the deadline expired; the appellants had thus failed to comply with their obligation to submit them "sufficiently early" within the meaning of art. 62 al. 1 aLDP; under these conditions, the fact that they had been sent B Mail by mistake was not decisive and appeared to be an incident with which the referendums should have reckoned; moreover, it was not certain that sending them A Mail would have enabled the deadline to be met.
50 The Federal Council's proposal to require that signature lists for referendum applications be submitted by the 81st day and that the relevant department return the lists by the 95th day of the deadline (in the case of the initiative, the department must return the lists by the 1st day of the 17th month) was not followed (see above N 17 to 19).
3. Competent authority
51 The electoral status of initiative and referendum signatories must be verified and formally attested by the competent authority under cantonal law.
52 Most cantons do not specify in their legislation which authority is competent to certify signatures on federal matters. They do not distinguish between the certification of signatures to be issued for federal political rights pursuant to art. 62 LDP and the certification to be provided for cantonal initiatives and referendum applications. Often, a provision in cantonal law states that cantonal law applies to the exercise of initiative and referendum rights in federal matters insofar as they are not governed by federal law.
Only two cantons, Valais and Nidwalden, have enacted a cantonal law implementing the federal law on political rights. The canton of Geneva, on the other hand, expressly distinguishes between the authority responsible for federal political rights under art. 62 and art. 70 of the LDP and the authority responsible for cantonal initiatives and requests for referendum: for the former, it is the commune, and for the latter, the Service cantonal des votations et élections.
53 All cantons have delegated the task of certifying signatures in connection with federal popular rights to the communes, with the exception of Appenzell Innerrhoden (whose State Chancellery is in principle responsible for providing certificates of voter eligibility). The canton of Geneva stipulates that the commune is responsible for certifying signatures within the meaning of art. 84A para. 2 LEDP/GE; communes may, however, delegate signature verification to the Service cantonal des votations et élections, with this service being invoiced: all Geneva communes have made use of this option, with the exception of Laconnex and Chancy.
54 In cantons which have delegated the control of signatures to communes, the competent communal authority is designated by various terms: either the electoral register officer (as in the cantons of Fribourg, Aargau, Berne, Graubünden, Lucerne, St. Gallen, Schaffhausen, Zurich), or the communal administration (as in the cantons of Appenzell Ausserrhoden, Basel-Landschaft, Basel-City, Glarus, Nidwalden, Uri, Ticino, Solothurn, Zug, Thurgau, Schwyz, Obwalden, Jura), or the municipal executive (Vaud, Neuchâtel, Valais).
55 The number of popular petitions has risen sharply in recent years. It often happens that signature collections are organized at the same time for several initiatives and referendums, at federal, cantonal or communal level. As a result, the Swiss municipalities are under considerable pressure. Faced with ever-increasing and more frequent requests for proof of voter status, they often find themselves under great pressure as the signature collection deadlines approach.
B. Paragraph 2: the authority's tasks
56 Paragraph 2 of art. 62 of the LDP explains how the competent authority should proceed. It addresses the competent authorities under cantonal law. Firstly, they must certify that the signatories are federal electors in the commune designated on each signature list (para. 1); secondly, they must return the lists to the senders without delay (para. 2).
1. "Federal voters in the designated commune".
57 The role of the counting office is to certify promptly that the signatories are federal electors in the commune designated on each signature list. In other words, the service must check that the person who has signed a popular initiative or referendum request is indeed registered in the electoral register of the commune appearing on the list. All natural persons of Swiss nationality, over 18 years of age, who are not under general guardianship due to a permanent incapacity of discernment or who are not represented by a proxy for incapacity are eligible to vote in federal matters (art. 136 para. 1 Cst. cum art. 2 LDP).
58 Federal electors are entered in the electoral register of their political domicile (art. 4 LDP). A fixed place of registration ensures that a person cannot sign a referendum petition or an initiative in different places at the same time.
59 The Swiss abroad can also sign a popular initiative or referendum. To do so, they must enter their address abroad in the address column, specifying the zip code, the name of the commune and the country, together with the details of the political commune to which they are attached in Switzerland. Since the address given is abroad, the electoral register officer will reflexively look for the signatory in the register of electors established abroad. Depending on the canton, this register may be managed by the communes or centralized by the cantonal administration. If the signatory is not listed, the signature is considered null and void.
60 The reference date for certification of voter status is the date on which the list of signatures is received by the relevant department. Certification is granted if the signatory is entered in the electoral register on the day the list of signatures is presented for certification (art. 19 para. 1 ODP). This is why it is important for the relevant department to indicate the date of receipt on each list.
2. Returning lists "without delay
61 The relevant department is obliged to return the lists to the senders without delay, as the referendum deadline must be respected. This is an injunction. It has been decided not to introduce a specific deadline.
62 The Federal Chancellery recommends processing signature lists as they arrive. It is in the interest of municipalities to proceed in this way, since the closer the deadline for filing an initiative or referendum, the more quickly the certified lists need to be returned.
63 According to the recommendations of the Federal Chancellery, the communes should have returned the certificates of elector status to the senders no later than three days before the expiry of the deadline for the collection of signatures. If the committee does not collect the lists, they must be sent A Mail. B Mail must be sent no later than ten days before the deadline for signature collection. If possible, however, it is preferable to send the lists earlier. Less than 3 days before the deadline, it is more prudent to hand deliver the certificates.
64 The Federal Chancellery will declare null and void any signatures whose attestation has been faxed to the Committee.
C. Paragraph 3: content of the attestation
65 Paragraph 3 of art. 62 of the LDP contains a description of the contents of the attestation. The attestation must indicate :
the number of signatures attested: the service indicates in words or figures on each list or in the collective attestation the number of valid signatures and the number of invalid signatures (art. 19 para. 3 ODP);
the date ;
the handwritten signature of the Registrar of Electors;
the official seal of the office; the person authorized to issue the attestation must adequately indicate his or her official capacity (by affixing a stamp of the office or by a simple indication added by hand).
66 The attestation is the official decision establishing the number of valid signatures per list. For this reason, it must bear the official seal, the date of the decision and the handwritten signature of the officer in charge of the electoral register. It is a decision within the meaning of Art. 5 of the Federal Law on Administrative Procedure of December 20, 1968.
67 The decision to certify or not to certify may be appealed to the cantonal government (art. 77 al. 1 let. a LDP), and then to the Federal Court (art. 80 al. 1 LDP, art. 82 let. c LTF). If an authority refuses to issue a certificate, it must give reasons for its refusal. Nor should it be excessively formal.
68 As a precautionary measure, the relevant authorities may keep a record in the electoral register of each certificate returned for the various referendums and initiatives in progress, until the outcome is published in the Feuille fédérale. Documents such as printed extracts from the electoral register or similar computer files must be kept under lock and key, and destroyed once the initiative or referendum has been successfully completed.
69 In the case of mergers of communes, the relevant authorities must take particular care to ensure that no one signs the same initiative or referendum more than once. Each of the communes concerned should maintain a voters' list on which the names of signatories are crossed out. These lists can then be compared after the merger.
70 Voter certification is free of charge. Neither postage nor fees may be charged.
71 The service safeguards the secrecy of the vote (art. 19 par. 6 ODP). Voter certification is protected by secrecy. Once submitted, lists may not be consulted (art. 64 al. 2 LDP). Initiative and referendum committees are also bound by secrecy.
D. Paragraph 4: collective attestation
72 If several lists are processed at the same time, the Registrar of Electors may, in order to save time, issue a collective certificate. This possibility was introduced in 1978, when the LDP came into force.
73 Pursuant to art. 19 para. 5 ODP, the Federal Chancellery has drawn up instructions on the issue of collective attestations in accordance with art. 62 para. 4 LDP. In June 2015, the Federal Chancellery published a brochure entitled "Attestation de la qualité d'électeur", in which it sets out in detail the procedure to be followed for issuing the collective attestation and explains the requirements that a collective attestation must meet. It also presents a model of a correctly drafted collective attestation.
74 To avoid a large number of signatures being considered invalid, the collective attestation, to be drawn up on a covering letter, must comply with certain requirements:
it must take the form of a covering letter bearing the commune's letterhead; it may not be added to the committee's letter ;
it must contain the exact title of the popular initiative or referendum and the date of publication in the Federal Gazette. Electronic signatures and facsimile seals are prohibited. All signatures appearing on a list with any of these defects will be considered invalid;
the certificate must show the number of valid signatures, the handwritten signature of the electoral registrar, the official seal of the department and the date.
75 Collective attestation templates are available at www.bk.admin.ch. Here is one:
Commune ….. (en-tête)
Attestation collective
Concerne : initiative populaire fédérale « ................................................................................................................. » (Titre de l’initiative populaire et date de sa publication dans la Feuille fédérale)1
ou
Référendum contre la loi fédérale / contre la modification du ..... de la loi fédérale du ..... sur ..... .................................................................................................. (Choisir le type d’acte qui convient et ajouter les dates et le titre exacte)
Se fondant sur les art. 62, al. 4, et 70 de la loi fédérale du 17 décembre 1976 sur les droits politiques, sur l’art. 19, al. 3, de l’ordonnance du 24 mai 1978 sur les droits politiques, et sur les instructions de la Chancellerie fédérale du 27 mai 1978, le service ..................... (à désigner) de la commune de ..................... (numéro postal et nom) atteste que les ......... listes ci-jointes portent ......... signatures valables de citoyens qui ont qualité d’électeur en matière fédérale et exercent leurs droits politiques dans ladite commune.
Sceau du service : ……………….
Préposé au registre des électeurs : Signature manuscrite : ........................................................................................ Fonction : ........................................................................................ Lieu : ........................................................................................ Date : ........................................................................................
1 Les informations concernant l’initiative ou le référendum doivent être reprises des listes de signatures |
76 Signature lists and covering letter must be held firmly together. The covering letter must be placed on the lists and attached to them with staples, string, pins or a seal. If the resulting packets were to fall apart in transit, thousands of signatures could be declared invalid.
77 The numbering of the lists processed makes it possible to determine at any time which collective attestation relates to which list.
78 It is advisable to keep a copy of each collective attestation until the initiative or referendum has been completed.
E. Submitting attested lists to the Federal Chancellery
79 Lists of certified signatures must be deposited with the Federal Chancellery and classified by canton (art. 20 para. 1 ODP).
80 If the deadline for collecting signatures expires on a Saturday, Sunday or public holiday, the referendum application may still be submitted during office hours on the following working day (art. 20 para. 2 ODP).
81 In March 2020, the Federal Chancellery published a checklist for committees submitting initiatives, referendums and petitions. In particular, it sets out the place, date and time for filing initiatives and referendums.
F. An exception to the requirement to certify voter status during the COVID 19 epidemic
82 From September 26, 2020 to December 31, 2022, during the COVID-19 epidemic, in order to promote the exercise of political rights, a legal basis has been created to enable the Federal Council to provide that requests for referendums or popular initiatives with the required number of signatures may be submitted to the Federal Chancellery before the expiry of the deadline, without being accompanied by certificates of voter status; if necessary, the Federal Chancellery would forward the lists of signatures to the office responsible under cantonal law for certifying voter eligibility (art. 2 of the Federal Act on the legal basis for Federal Council ordinances to overcome the COVID-19 epidemic).
83 On this basis, the Federal Council first issued an ordinance concerning the attestation of voter status for popular referendums (COVID-19 ordinance attestation of voter status of October 7, 2020). In force from October 8, 2020 to December 31, 2021, this ordinance allowed the certification of the electoral status of signatories of a referendum application to take place after the expiry of the referendum deadline for referendum applications against acts published in the Federal Gazette between June 30, 2020 and July 31, 2021.
84 At its meeting of May 12, 2021, the Federal Council repealed the above-mentioned ordinance and adopted the total revision of ordinance COVID-19 attestation of voter eligibility. Under the new ordinance, in addition to lists of signatures in support of referendum applications, lists of signatures in support of popular initiatives could now also be submitted with or without a certificate of elector status. This time-limited measure, in force from May 13, 2021 to August 31, 2022, applied to referendum applications against acts published in the Federal Gazette between March 30, 2021 and March 31, 2022, and to popular initiatives submitted to the Federal Chancellery between May 13, 2021 and June 30, 2022 (Art. 1 para. 2). The Federal Chancellery could hand over the lists of uncertified signatures to the competent cantonal authorities and ask them to certify them (art. 3). The relevant cantonal authorities were to return the certified lists directly to the Federal Chancellery without delay (but within 14 days of receipt at the latest) (art. 4).
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