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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
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- Art. 19 PRA
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- 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
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- Art. 40 PRA
- Art. 41 PRA
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- Art. 48 PRA
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- Art. 55 PRA
- Art. 56 PRA
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- Art. 58 PRA
- Art. 59a PRA
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- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
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- Art. 75 PRA
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- Art. 76 PRA
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- 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
1 The question of proof of voter status arose with the introduction of referendum and initiative rights in the 19th century. As far as initiatives were concerned, art. 5 para. 3 of the Federal Act of January 27, 1892 (hereinafter referred to as the "1892 Act") stipulated that "signatures which do not bear the certificate prescribed in art. 4 para. 3, or whose certificate is inaccurate or incomplete, shall be disregarded". This article also specified that "if there are signatures which emanate visibly from one and the same hand, they shall be cancelled and shall not be taken into account".
2 Five years later, noting that irregularities in the attestations were leading to the cancellation of a large number of signatures, the Federal Council sought to remedy this drawback 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). Article 3 of these regulations stipulates that "if there are signatures on a list which are obviously written by the same hand, these signatures shall be crossed out as invalid, with the exception of one".
3 Paragraph 2 of art. 63 LDP, which came into force in 1978, took over the content of art. 3 of the 1897 regulations: only one signature is attested when the elector has signed the application several times. Paragraph 3 of art. 63 of the LDP also introduced a new provision. The authority responsible for verifying the electoral status of signatories must now briefly state the reasons for refusal.
4 Art. 19 para. 2 letters a to f of the Ordinance on Political Rights of May 24 1978 (ODP) specifies in detail the six formulas leading to refusal of the attestation, namely illegibility, non-identification, multiple signatures, signatures from the same hand, a non-handwritten signature and an elector who is not entered in the register of federal electors.
5 In 1997, two grounds were added to letters g and h of art. 19 para. 2 ODP, namely the absence of a handwritten signature and an incorrect date of birth.
6 The LDP had also introduced the possibility of correcting defects in the attestation if the outcome of the referendum depended on it (art. 65 aLDP). It was also possible to eliminate these defects even after the referendum deadline had expired. Art. 19 al. 4 aODP stipulated that if the service was unable to issue its attestation within the required timeframe, it would note this on the list, indicating the date of receipt. The possibility of subsequent correction of attestation defects was abolished in 1997.
II. Importance of the provision
A. General
7 Art. 63 LDP, entitled "Refusal of attestation", has had three paragraphs since its inception. Its wording has remained unchanged since 1978.
8 Art. 63 LDP is located in Title 4 of the LDP, which deals with 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).
9 Art. 63 LDP sets out the procedures for refusing to certify 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).
10 The provisions concerning refusal of certification apply to both federal constitutional initiatives calling for total revision (art. 138 FC) and those calling for partial revision (art. 139 FC). They also apply to all the types of referendum requests listed in art. 141 FC (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).
11 The scope of art. 63 of the LDP is considerable, as the granting of signature certification is a procedural condition for the successful outcome of a referendum request or initiative. In order to establish whether a referendum application or initiative has been successful, the Federal Chancellery verifies, among other things, that the certificate of elector status has been duly submitted (art. 21 ODP). Success is a condition for submission to the popular vote. Refusal to issue a voter's certificate can therefore have the effect of preventing an initiative or a request for a referendum from succeeding.
12 Art. 63 of the LDP, as a rule organizing political rights, enjoys the protection afforded by the guarantee of political rights (art. 34 para. 1 FC). 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.
The refusal of 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.
13 An appeal concerning voting rights (Stimmrechtsbeschwerde) may be lodged with the cantonal government for violation of art. 63 LDP (art. 77 al. 1 let. a LDP) against an unjustified refusal of certification. Indication of the reason for refusal should make it easier for the appeal authorities to determine whether the refusal is well-founded. Appeals 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 committee may complain that the lists with voter certificates were returned too late, or that the nullity of certain signatures was not clearly indicated.
14 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.
B. Comparative cantonal law
15 The concept of refusal to certify voter status is found in all cantonal legislation and regulations. The cantons have enacted provisions similar to those of art. 63 of the LDP, albeit with some specific features.
16 As at federal level, the reason why a signature is declared invalid must be stated.
17 Reasons for refusal often include illegibility of the signature, the fact that the signature is given several times, that it is from the same hand, that it is not handwritten, that the signatory is not entered in the electoral register, that the signatory is not identifiable, that the date of birth is wrong or that the signature has already been crossed out when the commune received the list. In the Canton of Zurich, cantonal law refers directly to federal law as regards the grounds for refusal of certification.
18 As under federal law, the competent authority must ensure that the same person has not signed the same application several times. In some cantons, it is specified that any person who affixes a signature other than his or her own is liable to criminal prosecution. The canton of Uri stipulates that in the case of multiple signatures, none of them is validated. This would appear to be contrary to the principle of proportionality (art. 5 para. 2 FC) and the guarantee of political rights (art. 34 FC).
19 Many cantons, such as Vaud, Valais, Solothurn, Aargau, Schaffhausen, St. Gallen, Basel-Landschaft and Graubünden, require the authority responsible for certifying signatures, or the cantonal chancellery, to remedy defects in the certification under certain conditions, in principle if the outcome depends on it. Corrections can also be made after the referendum deadline. In the canton of Neuchâtel, it is stipulated that when the signatory can be easily identified despite incomplete information, the competent authority must eliminate the defects.
20 In the canton of Fribourg, the cantonal Chancellery informs persons whose signatures have been declared invalid and advises them of the legal remedies available. In a decision of 1894, the Swiss Federal Supreme Court had already recognized the right of citizens to consult signatures declared invalid if these were decisive for the initiative's non-implementation.
21 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 certification.
III. Comments
A. Paragraph 1: grounds for refusal of attestation
22 Art. 63 para. 1 of the LDP stipulates that the attestation of voter status is refused if the conditions of art. 61 of the LDP relating to signatures are not met.
The first condition for declaring a signature valid is that the signatory is entered in the electoral register (art. 4 LDP) on the day the list is received by the relevant department. Attestation is only granted if the signatory is entered in the electoral register on the day the list of signatures is presented for attestation (art. 19 al. 1 ODP). This is why it is important for the relevant department to indicate the date of receipt on each list.
Other conditions are that the surname, first name(s) and signature must be handwritten. These conditions are cumulative.
23 Art. 19 para. 2 ODP lists eight cases in which certification of voter status is refused:
the signature is illegible (letter a)
the signature is unidentifiable (letter b)
the signature is given several times (let. c)
there are signatures in the same hand (let. d)
the signature is not handwritten (let. e): the "name and surname" and "signature" fields must be filled in personally by hand, and repeating quotation marks are forbidden. The date of birth and address, on the other hand, may be printed or written by another person, and quotation marks may be used in the address field.
The law makes an exception for people unable to write (due to blindness, quadriplegia or serious hand injury). To sign an initiative or referendum request, they must ask an elector of their choice to enter their surname, first name, date of birth and address on the list. In the signature field, the person whose help has been requested must write his or her own name in capital letters, add the words "by order/p.o." and sign by hand (art. 61 al. 1bis LDP and 18a ODP).
the elector is not registered (let. f): this may be a person who is not a Swiss citizen, a minor, a person who is not domiciled or no longer living in the commune, a weekly resident of a commune, a deceased person or a person under general guardianship due to incapacity of discernment.
absence of a handwritten signature (letter g)
the date of birth is incorrect (let. h): if the full date of birth (and not just the year) is required to identify a signatory (e.g. in the case of surnames and first names common in a commune), this must be indicated. If, despite an incomplete date, the person is easily identifiable, the signature should be considered valid. If, on the other hand, the date of birth is false and there is doubt as to the authenticity of the signature, it is not valid. The same applies to the address.
the signature has already been crossed out when the commune receives the list: this ninth ground for invalidity does not appear in art. 19 para. 2 ODP, but has been added by the Federal Chancellery.
24 The competent authority under cantonal law must indicate the number of valid and invalid signatures on each list or in the collective certificate.
B. Paragraph 2: the special case of multiple signatures
25 Voters may only sign each initiative or referendum request once. Multiple signatures must be crossed out from the second onwards. The risk of encountering signatures more than once is particularly high in the case of referendums launched by different committees against the same act. To avoid having to issue several certificates of voter status for the same person, it is advisable to create a computer file or print out an extract from the register of voters for each initiative and referendum as soon as the first lists are received. If these are kept up to date, it will subsequently be easy to see whether a voter has already signed the initiative or referendum in question.
26 As the deadline for collecting signatures is long for popular initiatives (18 months), it can also happen that a person signs a popular initiative in the first month of the deadline (while domiciled in a French-speaking canton), moves to a German-speaking canton and then signs the same initiative a second time seventeen months later, without any intention of falsification. In this case, neither the commune of the French-speaking canton nor the commune of the German-speaking canton has any knowledge of the certificate issued by the other commune. It is only during subsequent checks by the Federal Chancellery that this double signature may be discovered.
27 Where communes merge, particular attention must be paid to the risk of a person signing the same initiative or referendum request several times. Each of the communes concerned should maintain a voters' list on which the names of the signatories are crossed out. These lists can then be compared after the merger.
28 Signing the same initiative or referendum request several times also has penal consequences. Such behaviour constitutes electoral fraud within the meaning of art. 282 ch. 1 II StGB and is punishable by a custodial sentence of up to three years or a pecuniary penalty. The same applies to signing a request for a referendum or an initiative without being entitled to political rights (whether due to age, change of domicile or nationality) and to signing in the name of a third party, even if the author is acting as a representative of the person concerned, albeit with the latter's authorization. It is irrelevant whether the initiative or referendum request reaches the required number of signatures in any case. The offence is committed as soon as the perpetrator participates, without being entitled to do so, in one of the political rights listed in art. 282 ch. 1 II of the Swiss Criminal Code. The influence on the outcome is irrelevant. Electoral fraud, on the other hand, is an intentional offence. Thus, if a citizen signs a referendum or initiative application several times without remembering having already signed it, he or she is not committing a criminal offence.
C. Paragraph 3: the obligation to give reasons for refusal
29 The competent authority must identify invalid signatures and cross them out. If it refuses to issue a certificate, it must give reasons for its refusal. However, the refusal must not be excessively formal. The reason for the invalidity of a signature must be entered in the control column, using the abbreviations proposed by the Federal Chancellery.
30 In 1997, the possibility for the competent authority to remedy defects in the attestation if the outcome of the referendum depended on it, and to eliminate such defects even after the referendum deadline had expired, was abandoned.
31 An appeal may be lodged with the cantonal government against a refusal to issue an attestation if the reasons for the refusal are not given or are inadequate (supra N 13). Giving the reasons for refusal should make it easier for the appeal authorities to determine whether the refusal is well-founded.
Bibliography
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