Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents ("Hague Convention") is an international treaty and the source of "Apostille", which was drafted by the Hague Conference on Private International Law on October 5, 1961. It has been 54 years now, that the Hague Convention is in effect with no amendment. On the other hand, Special Commission of the Hague Conference prepared the "Handbook on the Practical Operation of the Apostille" in 2013, in order to show the implementation of the Convention and to serve as a guide for the issues that arise during the application thereof.
Hague Convention mainly specifies the modalities, through which a document issued in one of the signatory countries can be certified, in other words "Apostilled", for legal purposes in all the other signatory states. The expression of "Apostille" comes from the French word "apostiller", as originated from an old French term "postille", which actually means "annotation". Use of "Apostille" as a word dates back to the 16th century, where it used to stand for the additions made on the side or at the bottom of a document.
With its contemporary meaning, Apostille is an international certification comparable to the notarization process in domestic jurisdictions. Apostilization is the process where the respective governmental body certifies that a Notary's or another competent officer's signature, seal, and license are valid. It should significantly be noted that an Apostille does not provide information regarding the quality of the document, but certifies the signature and correctness of the seal/stamp on the document, which is actually intended to be certified by the related parties. After the Apostille process, the document will enjoy the legal effect that it originally has, in the receiving country.
Development of the Apostille System
When a document is drafted in a specific country, it will inevitably require to be confirmed in the other jurisdiction where the document is sent to, in terms of its originality. As the recipient state will not be familiar with the requirements legitimizing such document in the country of origin, an official procedure of "legalization" was developed in the World among the countries. Legalization is a series of transactions where Embassies, Consulates and in some cases Ministries such as the Ministry of Foreign Affairs are involved. It can be deemed as a time-consuming, uneconomic procedure.
Hague Convention abolished this process and facilitated the international flow of documents by introducing an authentication certificate called the Apostille, to be issued by the competent authority of the country of origin.
According to the Article 9 of the Hague Convention, member countries shall take the necessary precautions to prevent their Embassies, Consulates and similar authorized bodies from providing legalization on documents, once they join the Convention.
Conditions for the Validity of Apostille
There are 103 states which have ratified the Hague Convention, around the world. Only the countries which were present at the 9th Session of the Hague Conference could sign and ratify the Hague Convention. These were namely Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Yugoslavia, and the United States of America. In addition; Iceland, Ireland, Liechtenstein and Turkey were also entitled to ratify the Convention. Further countries that intend to join the Hague Convention can do so, through the way of "accession".
Article 1 of the Hague Convention clearly sets forth that the Apostille process shall only operate among the parties to the Convention. Countries that are not party to the Convention (i.e. the ones that have not joined the Convention yet or that have joined the Convention but for which the Convention has not entered into force yet) have no authority to issue Apostille. An updated list of contracting states can be tracked over the web site of the Hague Conference: http://www.hcch.net/index_en.php?act=conventions.status&cid=41
We should also emphasize that the Hague Convention does not automatically apply in a country as soon as it joins thereto:
- It entered into force on the 60th day as of the deposit of the ratification instrument, for the parties joining through ratification.
- If the related state joins by way of accession, the Convention will enter into force on the 60th day as of the expiry of a 6 months' objection period, following the deposit of the accession instrument.
In order for an Apostille to be eligible, a public document must first be issued or certified by an officer recognized by the authority that will authenticate the origin of such document. For example, in New York-the U.S., the Secretary of State maintains specimen signatures of all notaries public, so documents that have been notarized are eligible for Apostilles.
Here, we should also put emphasis on the term "public document". Apostille transaction can only be the subject of a public document which is executed by an authority acting within an official capacity. Determination whether a document is a public document or not is indeed a matter of the law of the country of origin. Such document to which the Apostille relates or for which an Apostille will be issued is considered as the "underlying public document".
Authentication of the PoAs to be sent to Turkey
In the legal world, one of the documents we encounter with the Apostille most is with the Power of Attorney ("PoA"), which is one of the legal instruments used for any international/national legal matters.
In principal, any PoA to be given for the use in Turkey can be issued before a Turkish Notary Public. However, this option is not always available, especially in the international deals where the proxy giver cannot be expected to be present before the Notaries here. Owing to the fact that Turkey is a party to the Hague Convention, if the PoA is to be prepared in a state that is also a party to the Hague Convention, the PoA can be first issued before the competent body-usually a Notary, in such country and sent to Turkey, by bearing the "Apostille" seal. If the country in question is not a contracting state, the PoA can be issued at Turkish Consulates in that country, which is actually the process of legalization explained above.
Sections of the PoA, legalization document and Apostille seal that are articulated in another language will be translated to Turkish, by official sworn translators and will be notarized by Turkish Notary Public, before the use of the PoA in Turkey.
An Apostille transaction cannot be rejected solely for the reason that it is drawn up in a language other than the language of the country of destination. Hague Convention states that the Apostille wordings can be drafted in the official language of the competent authority that issues it.
According to the "Conclusions and Recommendations of the Special Commission on the Practical Operation of the Hague Apostille, Service, Taking of Evidence and Access to Justice Conventions" prepared at the Hague Conference of 2 to 12 February 2009; competent authorities should draw up Apostilles in English or French, in addition to their official language, by keeping in mind that an Apostille is designed to produce effects abroad.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.