In order to acquire legal effect in a foreign state a document needs to be legalized by a respective government authority in the country of its origin.
Legalization means establishment and verification of authenticity of the signatures on the documents and acts, as well as their compliance with the laws of the state in which they were issued. Documents issued on the territory of a foreign state are deemed valid in the Republic of Belarus only upon their official legalization, if otherwise not stipulated by the international treaties ratified by the republic. This means that application of apostil or other legalization is not needed for the documents coming from the countries or directed to the countries with which Republic of Belarus has signed Treaties on Legal Assistance (Poland, Lithuania, Latvia, China, CIS countries, Vietnam, Czech Republic, Hungary, Cuba).
Carrying out legalization, a Belarusian consul certifies with his personal signature and official seal of the consular office authenticity of the signatures on the documents certified by the authorities of the consular district, or documents coming from such authorities. In case when there are no diplomatic representatives or consular offices of the Republic of Belarus in the country the document may be legalized at the Consular Department of the Ministry of Foreign Affairs of the Republic of Belarus by verification of authenticity of the signature of a diplomatic representative of the state from which the document comes, and whose diplomatic representation is accredited in the Republic of Belarus.
In order to avoid the whole complicated procedure of the legalization its simplified form – application of apostil – may be used.
1. Apostil: general provisions.
Procedure of application of apostil to the official documents is regulated by the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents concluded on October 5th, 1961 (hereinafter – the “Convention”). Pursuant to Article 1 of the Convention the following are deemed to be public documents:
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 ("huissier de justice");
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.
The Convention does not apply to:
a) to documents executed by diplomatic or consular agents;
b) to administrative documents dealing directly with commercial or customs operations.
However, if respective government authorities of the states – parties to the Convention deem it possible to apply apostil to a commercial document, then it will be valid on the territory of a signatory state without further legalization.
Apostil is drawn on the document itself or on a separate sheet attached to the document; it should comply with the specimen attached to the Convention. Apostil may be drawn up in the official language of the issuing authority, and its provisions may be set forth in another language as well. The title “Apostille (Convention de la Haye du 5 octobre 1961)” may be given only in French.
Article 5 of the Convention: “The certificate shall be issued at the request of the person who has signed the document or of any bearer. When properly filled in, it will 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 signature, seal and stamp on the certificate are exempt from all certification”.
Thus, first of all authenticity of the copy of the document or powers and signature of the authorized person on the document are certified by one competent authority (a notary, for example). An appropriate certifying mark is made on the document. Then apostil is applied by another government body which is authorized to draw apostil on the official documents. In some states there is a single body authorized to carry out all of the above mentioned actions.
Pursuant to Article 6 of the Convention each contracting state designates, by reference to their official function, the authorities who are competent to issue apostil. In some states, there is a single body (for example, Secretary of the State in the United States of America); in other countries, there are several authorities (Republic of Belarus). Each of these bodies should keep a register or a card index in which it records the issued apostils, specifying:
a) the number and date of the apostil,
b) 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.
At the request of any interested person, the authority which has issued the apostil verifies whether the particulars in the certificate correspond with those in the register or card index.
2. Standards for apostil established in the Republic of Belarus.
In the Republic of Belarus an apostil should be formalized in compliance with the following requirements.
An apostil is issued on request of any bearer of the document and is drawn up on the blank space of the document, on its reverse side, or on a separate sheet of paper. In this case sheets of the document and the sheet with the apostil are sown together with a white and read thread (or by a special thin string or a strap) and numbered. The last sheet of the documents is sealed by a star-shaped paper sticker in the place of binding, and a stamp is affixed thereto. The stamp should be placed evenly on the “star” and on the sheet of paper. Number of the bound sheets should be verified by a signature of the official who has drawn the apostil. The sheet with the apostil should be sown together with the document in the above described manner in the case when the document has a hard cover as well.
These regulations were introduced by the Order of the Ministry of Justice of the Republic of Belarus # 13 dated February 12th, 1993.
The following government bodies are authorized to issue apostil in the Republic of Belarus:
- Ministry of Justice – in relation to the documents coming from the justice authorities and courts;
- Ministry of Education – in relation to the documents coming from the lower educational institutions;
- Committee on Archives and Record Keeping of the Council of Ministers of the Republic of Belarus – on the documents coming from the lower government bodies;
- Ministry of Foreign Affairs – on all other documents.
3. Conditions of recognition of the apostil on a foreign document as valid in the Republic of Belarus.
No requirements concerning recognition of validity of the apostil on a foreign document have been established by the effective legislation. Formally it means that solely general provisions of the Convention apply to the foreign documents. However, one should note that in practice documents and apostil are issued by foreign competent authorities (for example, French and German) in the same form as in the Republic of Belarus. Therefore in the event that a document does not comply with the above mentioned standards (for example, is stapled, as it is appropriate in the United States, instead of being sown together), a notary may refuse to certify it at his discretion.
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