The creation and validation of electronic copies of notarised documents is precisely regulated in the Ordinance on the Creation of Electronic Public Deeds and Electronic Certifications (EPAO; 211.435.1) and the FDJP's Ordinance on the Creation of Electronic Public Deeds and Electronic Certifications (EPAO-FDJP, SR 211.435.11). These ordinances constitute the legal basis of the Validator.
Creating an electronic copy of a document
To create an electronic copy of a document:
- the public official (i.e. the notary) must be entered in the Register of Public Officials [https: www.upreg.ch] (UPReg). This is only possible for public officials whose canton of registration has introduced electronic public authentication.
- the public official must have access to a qualified electronic signature and affix this to the electronic document with a qualified time stamp. The signature must be applied in 'Sign' mode (not in 'Certify' mode!).
- the public official must add the regulated electronic seal of the Register of Public Officials (also known as 'confirmation of admission') to the qualified signed copy. This involves checking whether the person named in the qualified electronic signature (or in the attached certificate) is listed in the Register of Public Officials. The public official does this using version 1.06 or higher of Cygillum, a free program provided by the Federal Office of Justice (FOJ), or via an analogous function in a third-party program or specialised application.
Cygillum V.1.06 verifies the qualified electronic signature on the electronic copy of the document and adds the regulated electronic seal of the Register of Public Officials (confirmation of admission UPReg). Cygillum does not transmit the documents from the computer at any point during this process. You can learn how to use a third-party program to obtain confirmation of admission from the Register of Public Officials in Annex 3 of EPAO-FDJP. Annex 3 can be downloaded from the website of the Federal Office of Justice.
Validating an electronic copy of a document
In order to validate an electronic copy of a document, the Federal Administration's Validator checks whether: the qualified electronic signature has been applied in 'Sign' mode; the PDF/A-1 or PDF/A-2 standard has been complied with; the qualified electronic signature and the qualified electronic time stamp are valid in line with ESigA and; the regulated electronic seal of the Register of Public Officials is present and valid. If all these conditions are met, the Validator recognises that it is an electronic copy of a certificate and issues the notification that it is valid.
The EPAO obliges the responsible parties at the commercial register, the land register and the civil register to check electronic copies of documents with the Validator [https://www.validator.ch] upon receipt.
N.B.: Up to version 1.05 (i.e. until the end of 2022), Cygillum did not check whether the document's signature had been affixed in 'Sign' mode. It attached the regulated electronic seal of the Register of Public Officials to the copy even if the qualified signature of the public official had been affixed in 'Certify' mode with Option 1 (no further changes permitted in the document, including additional electronic signatures). The qualified electronic signatures of electronic copies signed in this manner would then be considered broken or invalid by Adobe Acrobat Reader and Validator Version 2. Validator Version 1, on the other hand, did not notice this error and considered such documents valid.
If the electronic signature of the public official was affixed with the Open eGov LocalSigner, Option 2 (additional electronic signatures only) was automatically selected when using 'Certify' mode, which allowed the signature of the Register of Public Officials to be affixed at a later point. Documents signed in this manner were therefore correctly recognised as valid in Adobe Acrobat Reader and in Validator Version 1 and Validator 2.
For security reasons, Cygillum Version 1.06 now rejects all electronic copies that have been electronically signed with 'Certify' mode. Validator Version 2 behaves like Validator Version 1: it identifies electronic documents from 2022 that were signed in 'Certify' mode with Option 1 as valid if both the qualified electronic signature and the regulated electronic seal of the Register of Public Officials are valid (it does not take into account the fact that the public official's signature is technically broken). Annex 3 of the EPAO-EJPD has been amended to the effect that signatures in 'Certify' mode are generally no longer permitted in documents.