The order of registration of the consular documents on notary issues, certification acts, legalization and vindication of documents
The notaries actions concern to the basic functions of the consul abroad. With conformity of an item 1 and 3 Laws of the Republic of Kazakhstan "About notary" the notaries actions on behalf of the Republic of Kazakhstan in the territory of other state are made by the officials of consular establishments of RK, carrying out consular functions.
Within the limits of the notary's competence the official of consular establishment of the Republic of Kazakhstan has the right:
- To certify the bargains, except for the contracts about alienation of immovable property which is taking place in the territory of the Republic of Kazakhstan;
- To arrange to protection ofhereditary property;
- To grant the certificate on the right to the inheritance;
- To assure the certificate on the property right to a share of common property of the spouses and other persons having property right of the common joint property;
- To testify a fidelity of copies of documents and extracts from them;
- To confirm authenticity of the signature on the documents;
- To testify a fidelity of translation of documents from one language into another;
- To certify the fact of finding of a citizen in alive;
~ To certify the fact of a presence of a citizen in the certain place;
- To certify time of presentation of documents;
- To transfer applications of the physical and legal persons to other physical and legal persons;
- To accept money sums and valuable papers in deposit;
- To make executive inscriptions;
- To accept on the storage of documents;
- To make sea protests;
- To provide proofs.
The notary's actions are made at the request of citizens and legal persons of the Republic of Kazakhstan. Foreign citizens and persons without citizenship can address to the RK consular establishments for fulfillment of notary's actions with the documents intended for use in its territory.
In consular establishments of the foreign states, which are in the RK territory, the notary's actions can be made concerning the Kazakhstan documents for use outside of the Republic.
The notary's actions are made in consular establishments of Kazakhstan in Kazakh and Russian languages. If the applicant does not know the specified languages, the consul represents him an interpreter.
The notary's actions are made in the day of presentation of all necessary documents, the payment of consular taxes and other payments connected to notary's actions. The consul should certify the personality of citizens of the Republic of Kazakhstan, who have addressed to them, by their passports or documents, their replacing. Their national passports identify the personality of foreign citizens.
The consul, honorable consul, not regular consul should explain to the citizens of the Republic of Kazakhstan their right and duty and warn them about consequences of notary's actions that the lack of information is not used in harm.
At the certificate of the confirmation of capacity of citizens and right of legal persons enters into the duty of consular officials.
All documents (bargain, contracts, will, powers of attorney, notaries certificates, executive inscriptions, acts about the sea protest) are made out in duplicate. One remains in the archive of consular establishment.
The RK consular officials should not accept foreign documents for fulfillment of notaries, passport and other actions without preliminary legalization in due order. Otherwise these documents will not be accepted to consideration by the appropriate establishments of RK.
The text of testifying inscription on documents is carried out by a printed way or appropriate stamp and corresponds materially testifying of the document.
All notaries' actions are registered in the consular register, which is stored in consular establishment within three years.
The consul or other consular official can refuse fulfillment of notary's actions, if it contradicts the legislation of RK. The reasons of refusal can be stated in writing and also explanation to the appeal. Higher bodies in subordination of the consul examine the complaints.
Now, we'll consider work of foreign notary. The citizens and legal persons of the Republic of Kazakhstan living abroad can address to the notaries of a host country. The documents, materially certified by foreign notaries, admit valid in the territory of RK, under condition of their legalization, which was made in the consular establishment of RK. The certificate of foreign documents can be made both in consular establishment of RK and in state and private notaries offices of RK. This international rule, when the documents, made in one state, are accepted in the other state under condition of their legalization was done in due order.
The notaries documents, which have been made out by foreign notaries in Russian and Kazakh languages, admit valid in the territory of RK, if they do not contradict the legislation of Kazakhstan.
If the Republics of Kazakhstan have concluded the bilateral and multilateral agreements with foreign states about the legal help, the documents materially certified by the notaries of these foreign states, are accepted in the territory of Kazakhstan without legalization.
The legalization is an acknowledgement of conformity of the documents to the legislation of the state of a stay.
The order of legalization of the documents is fixed in the Consular
charter of RK and Instruction about consular legalization. According to these documents the legalization of the Kazakhstan documents is carried out by the Department of the consular service and the legalization of foreign documents, intended for use in the territory of Kazakhstan, is carried out by Kazakhstan consular officials in appropriate foreign countries. The documents, which do not pass the legalization of foreign Kazakhstan consular services, are not valid and cannot be recognized in the territory of Kazakhstan.
The documents for legalization are represented as in the originals and materially certified copies. There are documents, which can be certified only at presentation of the original. There are appropriate consular taxes for legalization of documents, except for a case is raised, when the international treaty stipulates refusal of collection of taxes. Consular taxes are not accepted for legalization of the documents about the labor experience, social maintenance of citizens, under the alimony and other documents, stipulated by the Kazakhstan legislation.
After the legalization of a document in the Department of the consular service, the consular establishment of that state, where it will be used, further legalizes document.
The legalizations of documents, contradicting to the legislation of RK and also documents able to put damage to the Republic interests are not subject.
According to the international norms, the legalizations of a passport and documents, replacing them and also customs documents on moving the goods through a border, customs declarations, agreement on deliveries and other documents do not require. The refusal in legalization of documents can be appealed to senior consular person or through court.
Let's consider the mechanism of legalization. The documents for legalization in the Kazakhstan foreign consular establishments act in language of a host country. Legalization inscription are made in the Kazakh and Russian languages, appropriate number is given to it, the date is put and the consular official signs it. The signature of the consular person is deciphered.
If the official foreign documents are represented to state bodies, they make sure of the special order according to the Hague convention, 1961, canceling legalization of the official documents.
On the official documents the special stamp "apostil" is put which certifies authenticity of the signature, seal, stamp. Official document is meant as the documents outgoing from administrative and judicial bodies, from the notary. The properly made out document with a stamp " apostil " does not require additional assurance. The convention is not distributed to the diplomatic and consular documents.
Kazakhstan has joined the Hague convention, 1961 in December 1999. This convention works in the territory of the following CIS countries and the Baltic Sea: Russia, Kazakhstan, Byelorussia, Armenia, Latvia, and Lithuania.
There are also other kinds of the assurance of documents. According to the bilateral agreements about the legal help on civil, family and criminal cases made by Kazakhstan with foreign states and the CIS countries, such order works. The documents given by official authorities by one of the parties are considered as official ones and are used in the territory of other party as the official documents. The additional certificate of these documents as consular legalization and stamp "apostil" is not required.
In the international consular practice there are cases, when the consular legalization is cancelled concerning a separate category of documents. The Republic of Kazakhstan concluded such agreements in the bilateral order with a number of the CIS states and distant foreign countries. The Agreement between the Governments of Kazakhstan and Uzbekistan in the field of a railway transportation provides that "the contracting Parties will cooperate in the field of preparation of the experts of a railway transportation and recognize the qualifying documents given by each of the contracting Parties, which will have equal legal force in the territories of both states and not require legalization",
A number of agreements made by Kazakhstan with Azerbaijan in humanitarian sphere also are provided by cancellations of the requirement of legalization. Agreement about bases of relations between the Republic of Kazakhstan and Azerbaijan Republic contains a rule: "Each of the high contracting parties recognizes the documents on education, about assignment of a scientific degree and award of a scientific rank given other Contracting party without legalization".
Registration by consular establishments of the documents on issues of certification acts needs that the consular officials at registration of the marriage-family relations are guided by the RK Law "About a marriage and family41, "Rules about the order of registration of the acts of a civil condition in RK".
The marriages between the citizens of the Republic of Kazakhstan, living outside the territory of Kazakhstan, are registered in embassies or consular establishments of RK abroad. Accordingly marriages between the foreigners made in the territory of Kazakhstan admit valid in embassies or consular establishments of the foreign states on conditions of reciprocity. At the moment of the conclusion of a marriage the persons should be the citizens of the state, which nominated its Ambassador or Consul in the Republic of Kazakhstan.
The marriages made in outside of Kazakhstan between the citizens of the Republic of Kazakhstan and the foreigners or the persons without citizenship, admit valid, if the legislation of the country of a presence are observed.
At the conclusion of a marriage in the territory of Kazakhstan at various citizenship a condition are defined for each persons entering a marriage, by legislation of the state, which citizen the person is at the moment of the conclusion of a marriage.
At the conclusion of a marriage in the territory of Kazakhstan certification acts the foreign citizens and the persons without citizenship have to legalize such document in the appropriate embassy or consular establishment of the Republic of Kazakhstan abroad or in the Department of a consular service of MFA RK.
The cancellation of a marriage between the citizens of the Republic of Kazakhstan and foreigners and also marriage between the foreigners in the territory of RK is made according to the RK Law "About a marriage and family" (item 204). The citizen of RK? living abroad, can terminate a marriage with the spouse living outside the RK territory without dependent on his (her) citizenship in the Kazakhstan court.
Cancellation of a marriage between the citizens of RK and foreigners outside of the Republic is considered valid, if the legislation of the appropriate foreign state is observed.
The consular officials register adoption of the child being the citizen
of Kazakhstan and living outside of limits of the Republic according to the legislation of RK. Adoption should receive the preliminary sanction from a local executive body in a residence of the child. If as a result of adoption the rights of the children, established by the RK legislation, are broken the adoption can be cancelled in the judicial order.
Vindication of the documents is made according to a Temporary rule about the order of export, transfer and vindication of the personal documents of the RK citizens. This rule adjusts transfer and vindication of the various documents on registration of the acts of a civil condition, about education, award of a scientific degree, registration of vehicles, labor experience, passage of a military service etc.
The originals and copies of the military certificates and business cards of the person are not subject to export both transfer. In case of departure abroad on a constant residence the specified documents should be handed over in the appropriate establishments.
It is necessary to note that the expansion of a treaty-legal basis of the consular relations between the Republic of Kazakhstan and foreign countries occurs at the expense of the treaties and agreements on legal help in civil, family and criminal cases. According to the Convention made between the CIS states in 1993 in Minsk, the participants have taken the obligation to render each other legal help, to provide to the citizens of contracting parties living in their territories, legal protection concerning the person and property. Any citizen of the countries -participants of the Convention can address to court,, prosecutor and other establishments, show their claims and carry out other remedial actions. Besides, they are released from payment both compensation of judicial and notaries duties, use legal help free-of-charge.
The Republic of Kazakhstan now has signed a number of the similar bilateral agreements on legal issues with People's Republic of China, KPDR (KNDR), Mongolia, Pakistan, and Turkey. The volumes of legal help are various. So, the Kazakhstan-Turkish agreement provides cooperation of the two countries only in civil businesses. The Kazakhstan-Chinese agreements provide rendering greater volume of legal help in civil businesses, criminal and remedial businesses.
Kazakhstan has no agreements on legal co-operation with majority of the distant foreign countries. Last years the number of the applications
of the Republic of Kazakhstan citizens has increased to render them legal help in the states of distant foreign countries. Absence of agreements on legal help with these countries complicates the activity of consular establishments. Therefore, there is the urgent work for the RK consular service in conclusion of the specified agreements with Germany, countries of East Europe, Iran and OAE.