Introduction

On 5 October 1961, the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (“Apostille Convention”) has been concluded. Apostille Convention aims to abolish the chain of legalization process of the public document and simplifies the process through the issuance of an authentication certificate.¹

In line with the principle of the newly issued Job Creation Law, Indonesia strives to increase the public service and support for the easiness in doing business by acceding to the Apostille Convention. The Apostille Convention is acceded under the Presidential Regulation Number 2 of 2021 on the Accession of the Convention Abolishing The Requirement of Legalization for Foreign Public Documents (“PR No. 2/2021”) on 5 January 2021.

This article discusses briefly (i) the Apostille, (ii) the types of document which are considered as public documents under the Apostille Convention, (iii) the designated authority to issue the Apostille Certificate, and (iv) the differences of the process before and after the Apostille Convention.

Apostille: The Only Formality Required

The Apostille Convention simplifies the chain of legalization process toward the public document.² The only formality required in order to certify (i) the authenticity of signature, (ii) the capacity of the signatory, and (iii) the identity of the seal or stamp which it bears, is by furnishing the public document with a certificate known as “Apostille Certificate” (“Apostille”)³. The Apostille Certificate is issued by the Competent Authority (as explained below) upon request from the person who signs the public document or any bearer.

In general, Apostille Certificate is issued in a paper-based form. It is however also possible that the Apostille Certificate is also be issued in an electronic form (“E-App”). Some Competent Authority in several states allows the E-App to be issued electronically for public documents which are produced electronically.

The issuance of E-App might also be issued by the Competent Authority of Indonesia, since several public documents (eg. land documentation, and NIB) might be issued electronically and the use of electronic signature has been recognized.

Scope of Public Document

First and foremost, it has to be determined what constitutes a public document? As per the Apostille Convention Handbook, the concept of the public document is intended to be interpreted broadly. In essence, any document issued by a person who acts as an authority or in an official capacity (not as private individual) is a public document.⁴

The Apostille Convention does not provide an exhaustive list of documents that constitute a public document. Nevertheless, it provides some guidelines on the type of documents which are treated as public documents, namely:⁵

1. 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 court or a process-server (huissier de justice)
   Under the Appendix of PR No. 2/2021, the Government of Indonesia further declares that any documents issued by the prosecutor as the prosecuting body in Indonesia are not included as a public documents whose requirements of legalization have been abolished by the Apostille Convention.
2. Administrative documents
   Administrative document means a document that is issued by an administrative authority. The common examples of the administrative documents are (i) birth, death, marriage certificate, (ii) land certificate, (iii) intellectual property certificate, or (iii) educational documents.⁶
3. Notarial acts
   In Indonesia, the notary serves as a public official⁷. Therefore, any instrument or deed drawn up by the notary that stipulates legal obligation or formally records or verifies an act that has been declared, done or agreed constitute a public document.⁸
4. Official certificates which are placed on documents signed by person in their private capacity
   The Apostille Convention does not provide a definition on the official certificate. It provides examples, such as (i) certificates recording the registration of a document or the fact that it is valid from a certain date, or (ii) notarial authentications of signatures.
   Notwithstanding the above, the Apostille Convention also provides the types of document which do not fall under the scope of public document. The Apostille Convention shall not apply to:⁹
   1. documents executed by diplomatic or consular agent
      With regards to this type of documents, they are generally considered as a foreign documents in the state in which they are executed. Applying the Apostille Convention towards the said documents would be inappropriate¹⁰. For instance, after a diplomatic agent at the Netherlands embassy in Indonesia executes a document, such documents will be sent over to the Competent Authority of the Netherland to be apostilled. Such procedure would be unnecessary.
   2. administrative documents dealing directly with commercial or customs operations
      The Apostille Convention is not also applied towards this type of documents. Essentially, the aforesaid documents do not require any legalization to simplify the complexity of the export and import formalities and documents requirement¹¹. Therefore, applying the obligation of apostille to the said document would impact the easiness in the international trade activities.

Competent Authority

As we have established earlier, the Apostille Certificate is issued by a competent authority, who serves as a designated authority to perform functions in relation to the Apostille (“Competent Authority”)¹². The fundamental functions of the Competent Authority in relation to the Apostille, namely:¹³

1. verifying the authenticity of public documents;
2. issuing Apostille Certificate, and
3. recording any issued Apostille Certificate.

To date, the Competent Authority of Indonesia has not been designated by the Government of Indonesia. The designation of the Competent Authority of Indonesia shall be notified to the Ministry of Foreign Affair of the Netherlands at the time the instrument of accession is deposited¹⁴. Any change of the Competent Authority shall also be notified.

Pre v Post Apostille Convention

Prior to the accession of the Apostille Convention, Indonesia distinguishes the process of legalization of public documents depends on the place in which such documents are produced and the place in which such documents will be used, as follows:¹⁵

1. for a document produced in Indonesia and will be used abroad, such document shall be initially legalized by the authorized official in the Ministry of Law and Human Right prior to be legalized by the authorized official of the Directorate of Consular in the Ministry of Foreign Affair (“Appointed Consular of MOFA”); and
2. for a document produced abroad and will be used in Indonesia, such document shall be initially legalized by the appointed authority of the Embassy of Indonesia prior to be legalized by the Appointed Consular of MOFA.

After the accession of the Apostille Convention comes into force, however, the above mentioned legalization process is abolished and simplified by the Apostille.

Please refer to the flowchart below which illustrates the process of the Apostille:

Aftermath

The implementation of the Apostille Convention in Indonesia shall be in force on the sixtieth day after the deposit of the accession instrument in the Ministry of Foreign Affair of the Netherlands. During the deposit, the Government of Indonesia shall also notify who will be the Competent Authority of Indonesia.

First thing to be done by the Government of Indonesia is to designate the Competent Authority. The designation of the Competent Authority needs to consider the vast geographical condition of Indonesia. Therefore, perhaps it is better to designate a Competent Authority in every city in Indonesia in order to give accessibility for the people who live in a remote area.

Furthermore, the implementating regulation of the Apostille Convention shall also be issued by the Government of Indonesia (“Implementing Regulation”). The Implementing Regulation may further emphasize the type of documents which fall under the scope of public document and its exception. It may also stipulate that the court shall admit the validity of public documents executed abroad which has been furnished by the Apostille Certificate.

Kevin Samuel Fridolin Manogari

1. Paragraph 12 of the Apostille Handbook on the Practical Operation of the Apostille Convention, published by the Hague Conference on Private International Law (“Apostille Convention Handbook”)
2. Article 2 of the Apostille Convention
3. Article 3 and 4 of the Apostille Convention
4. Paragraph 111 of Apostille Convention Handbook
5. Article 1 paragraph (2) of the Apostille Convention
6. Paragraph 124 of Apostille Convention Handbook
7. Please refer to the definition of Notary under the Law no. 30 of 2004 concerning Notary as amended by Law No. 2 of 2014
8. Paragraph 127 of the Apostille Convention Handbook
9. Article 1 paragraph (2) of the Apostille Convention
10. Paragraph 139 of the Apostille Convention Handbook
11. Paragraph 147 of the Apostille Convention Handbook
12. Article 6 of the Apostille Convemtion
13. Paragraph 41 of the Apostille Convention
14. The instrument of ratification shall also be deposited in the Ministry of Foreign Affair of the Netherlands
15. Article 4 and 5 of the Minister of Foreign Affair Regulation Number 13 of 2019 of the Methods of Legalization of Public Documents