Apostille (Convention de la Haye du 5 Octobre 1961). Common mistakes and delusions of legalization of official documents

In our generation, everyone is well aware of what an apostille is. In accordance with the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents, the apostille came to replace the diplomatic or consular legalization of foreign official documents.

1961 Hague Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State.

The following are deemed to be public document:

a) documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server);

b) administrative documents;

c) notarial acts;

d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

However, the present Convention shall not apply:

a) to documents executed by diplomatic or consular agents;

b) to administrative documents dealing directly with commercial or customs operations.

An apostille may not be provided for documents issued before the relevant country joined the Hague Convention. So, you cannot arrange an apostille on a document issued, in particular, in Russia before May 31, 1992 and Ukraine before December 22, 2003. In this case, it is necessary to obtain duplicate document issued after appropriate date and apostilled that document.

Common mistakes

We are all fully informed that in the market of legal services we often meet people who have a very indirect connection with jurisprudence. Hence the common mistakes, in particular, when an apostille is put on a notarial copy of the document. The deceived client takes the document precisely for “testimony with an apostille”, but when arriving in another country, he is disappointed to find out that his document cannot be recognized.

In accordance with Articles 3 and 5 of the 1961 Hague Convention, apostille certifies the authenticity of the signature, and the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which the document bears.

That is, an apostille on a notarial copy certifies the authenticity of the signature of notary, nothing to do with authentication of original document. If you are going to submit to the foreign country, for example, a birth certificate with apostille, you should to put an apostille for original certificate, not on the notarial copy. The same rules apply to any court documents, educational documents, marriage certificates, divorce certificates, and death certificates. If your document is too old for an apostille (for example, you were born in 1980), then you need to get duplicate of your birth certificate and apostilled it. Do not try to deceive the foreign authorities: thousands of similar situations pass through them.

Some offices offer apostille on a notarial copy for reasons of territorial convenience. For example, you got married in Ukraine in 2005. Apostille on the marriage certificate must be put in the same place in Ukraine. If you want decide to arrange apostille in Russia, it will be contrary to Article 2 of the 1961 Hague Convention, which stipulates that the apostille have to be produced in territory of country when document was issued.

The apostille is affixed on the document itself or on a separate sheet attached to the document. The title "Apostille (Convention de la Haye du 5 Octobre 1961)" should be in French. I recently encountered in my legal practice a blatant case of unprofessionalism with Secterary of State of New York Department of State. I received from this department a Certificate of Authentication instead of apostille.

An Apostille is an authentication of a public document issued pursuant to the 1961 Hague Convention abolishing the Requirement of Legalization for Foreign Public Documents. The Convention provides for the simplified certification of public documents to be used in countries that have joined the convention. Under the Hague Convention, signatory countries have agreed to recognize public documents issued by other signatory countries if those public documents are authenticated by the attachment of an internationally recognized form of authentication known as an Apostille. The Apostille ensures that public documents issued in one signatory country will be recognized as valid in another signatory country.

A Certificate of Authentication is issued by the New York Secretary of State to authenticate public document for use in any country which is not a member of the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents.

The Secretary of the State of New York issued a certificate of authentication in error. I fixed it right away, but most people who do not work with apostilles every day would be able to realize the mistake made by the clerk much later.

Who can obtain an apostille?

According to Article 5 of 1961 Hague Convention, the Apostille shall be issued at the request of any bearer.

Apostille certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which the document bears.

The document will not become more valuable because of apostille. If your document contains any errors, the apostille cannot fix it. If you have any problem, you can reach me for professional consultation, and I will be happy to assist you. I can prepare any power of attorney, obtain certificate from vital records office, documents from and any archives, including but not limited the court system, and resolve most of problems which you can meet.

How to verify an apostille?

According to Art 7 of 1961 Hague Convention, each of the authorities designated shall keep a register or card index in which it shall record the certificates issued, specifying the number and date of the certificate (1), the name of the person signing the public document and the capacity in which he has acted, or in the case of unsigned documents, the name of the authority which has affixed the seal or stamp (2). At the request of any interested person, the authority which has issued the certificate shall verify whether the particulars in the certificate correspond with those in the register or card index. In the United States you can do it online. In the Russian Federation it will be necessary to contact the Competent Authority by phone to verify it.

Karina Duvall