Public documents can sometimes only be recognised and used as such by the courts or authorities of another country if their authenticity has been certified beforehand. The authentication of foreign documents for presentation to German authorities or German documents for recognition by foreign authorities can take the form of an apostille or legalisation. The lawyers at Schlun & Elseven Rechtsanwälte will be happy to explain the above-mentioned types of procedures for authenticating a foreign document.
Public Documents – Function, Types and Criminal Procedure
There are certain vital records, public documents and certificates with which one comes into contact in the course of one’s life, some of which are unavoidable. The most common types of such vital records are:
- birth certificate,
- death certificates and wills,
- marriage certificate,
- proof of citizenship.
In simple terms, a vital record is a written declaration of a specific fact or circumstance. Classic examples of vital records are certificates, contracts and identity cards. However, a vital record is not always a written document at the same time. It requires an evidentiary sign in the form of a symbol or something comparable that has the function of an evidentiary declaration. For example, vehicle registration plates are also considered to be important documents.
Such vital records, public documents and certificates are suitable for use as evidence in legal transactions. Particularly concerning this evidentiary function, a distinction is made between private and public documents. While a public document is issued by a public authority or a person of public standing, such as a notary, and has a correspondingly high probative value, a private document has less probative value because such a body does not authenticate it.
Notarial documents are a particular type of public document. These authentications are subject to statutory formal requirements, such as the notarisation is carried out by a notary. This usually involves more complex and risky matters, such as inheritance documents (contract of inheritance, will, etc.) or contracts concerning marriage or the purchase of a property. Compared to the private or public document, the notarisation by a notary public establishes the document’s authenticity.
Please note: Various offence modalities can lead to a forgery of a document under § 267 para. 1 German Criminal Code. If a criminal investigation has been initiated against you on suspicion of this offence, the lawyers at Schlun & Elseven Rechtsanwälte will be happy to advise you. Please also read our article “Document Forgery under German Law” for further information.
Types of Procedure for the Authentication of Documents in Germany
German documents are often only recognised by foreign authorities and courts if their authenticity has been certified beforehand. This also applies when foreign documents are presented before German authorities or courts. The authentication and, at the same time, the evidential value of a document can be carried out using different types of procedures: the apostille or legalisation. Under which circumstances which of the two approaches is initiated and how they proceed precisely, we will explain in the following.
Exemption of the Procedure to Confirm Authenticity
Some European countries have bilateral agreements on the exemption of the procedure for confirming authenticity. For example, proof of authenticity of German public documents is not required in Denmark, France, Italy and Austria. There are also agreements with countries that exempt certain documents from the requirement of an apostille or legalisation but do not entirely waive the requirement of increased proof of authenticity.
Apostille
An apostille is a simplified form of proof of a document’s authenticity and the issuer’s authority. The basis for this type of procedure is the Hague Convention on the Exemption of Authentic Instruments from Legalisation of 5 October 1961. Through this convention, the countries concerned have mutually waived legalisation and agreed on the increased proof of authenticity provided by the apostille.
The apostille requires certification by the competent authority of the issuing country for the document to be authenticated. The contracting states decide which authority issues the apostille. To initiate the apostille procedure, the applicant must, therefore, first find out which authority/office is competent in their specific case.
In Germany, the Federal Office of Administration usually issues the apostille for federal documents (except for documents of the German Patent Office or the Federal Patent Court). There is no uniform regulation for documents of the federal states so the competence may differ in the federal states. The lawyers at Schlun & Elseven Rechtsanwälte will be happy to check which authority is responsible for your apostille and initiate the procedure with you.
Legalisation
Legalisation also serves to confirm the authenticity of a public document. § 13 (2) Consular Act (Act on Consular Officers, their Duties and Powers) states:
“Legalisation confirms the authenticity of the signature, the capacity in which the signatory of the document has acted and, where appropriate, the authenticity of the seal with which the document is affixed (legalisation in the narrower sense).”
In contrast to the apostille, legalisation is carried out in several steps. This procedure is used if there is no Hague Convention between the countries concerned.
Due to the various procedural steps required, legalisation differs from the apostille in that the confirmation of authenticity, i.e. the certification, is carried out by several authorities. As a first step, the (pre-)certification of the country in which the document was issued is required. In a further action, legalisation is carried out by the competent foreign representation of the country where the person concerned wishes to present the document. Under certain circumstances, a (final) certification may also be required.
There are also no uniform regulations for the responsibility of (preliminary) certification within the framework of the legalisation of German documents for use abroad. However, the Federal Office of Justice in Bonn is responsible for police certificates of good conduct. In contrast, the president of the district or local court is responsible for court and notarial documents. The subsequent legalisation is carried out by the foreign representation in Germany of the country where the document is to be presented.
The Federal Office of Administration carries out the final certification of German documents. The Federal Office of Administration can only take action if the preliminary legalisation has been legally issued. It should be noted that final certification is not required by all countries. The final certification of German documents is required by, among others:
- China,
- Iran,
- Nepal,
- Syria,
- The United Arab Emirates.
Legalisation of a Foreign Public Document for Use in Germany
Whether a foreign public document requires legalisation depends on the decision of the authority in Germany, where the document will subsequently be used. The legalisation of a foreign document is carried out by the German consul or the German embassy in the state where the document was issued (§ 13 (1) Consular Act).
Administrative Assistance for German Authorities
If a German mission abroad establishes that the requirements for legalisation of a foreign public document are not met, legalisation is initially suspended with the approval of the Federal Foreign Office. This may be the case if a particular type of document cannot be legalised or if it is fundamentally impossible for the German mission to check the document.
In this case, however, there is the possibility of an expert examination of a document. This examination is open to domestic German authorities but not to private individuals. The requesting authority requests the verification within the framework of administrative assistance, which is then carried out by the German mission abroad. The latter evaluates the information obtained during the examination of the document concerned and draws up a statement which is then forwarded to the requesting authority.
Translation of Public Documents & Vital Records in Germany
It is not uncommon for countries to require a translation of the document before it can be certified. This necessity is also the case in Germany. Whether another country recognises a translation of a public document from Germany is decided by that country.
German authorities usually require the translation of foreign-language documents. In Germany, it is the specific authority to that case that decides whether a translation carried out abroad can be used or not. In most cases, however, a translation of the document by a sworn translator in Germany is required.
It should be noted, however, that the translation of such a document is not the same as its certification. A translation is rather an additional expert service. Even if the translation of the document was carried out by a sworn translator, it does not become a public document at the same time. However, it is possible to have the signature of the expert notarised under the document in question. This endorsement can constitute “a public document” to which the types of procedure (apostille or legalisation) can apply.
Practice Group: Apostille & Legalisation
Practice Group:
Apostille & Legalisation
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