November 6, 2020
Procedure for notarization and legalization (apostille) documents in Kazakhstan
1. Normative legal acts of the Republic of Kazakhstan governing the procedure for notarization and legalization of documents
The legislation of the Republic of Kazakhstan on notaries and in the field of legalization (apostillization) is based on the Constitution of the Republic of Kazakhstan and consists of the following regulatory legal acts:
In the field of notaries:
Civil Code of the Republic of Kazakhstan еnforced by the Decree of the Supreme Council of the Republic of Kazakhstan dated December 27, 1994., Civil Code of the Republic of Kazakhstan (Special part) Code of the Republic of Kazakhstan No 409 dated July 1, 1999. determining that notarization of a transaction means checking the legality of the transaction, including whether each of the parties has the right to complete it, as well as individual transactions that require notarization.
The Code of the Republic of Kazakhstan dated 26 December, 2011 No. 518-IV.
Code of the Republic of Kazakhstan of December 25, 2017 № 120-VI. in terms of determining the rates of state fees for the performance of notarial acts, exemption from payment of state fees when performing notarial acts.
The Code of Ethics of a Notary (adopted by the XII Congress of Representatives of the Territorial Chambers of Notaries of the Republic of Kazakhstan on November 9, 2018), which is a set of general principles of professional personal and corporate ethics, basic rules of conduct, ethical obligations of a notary to persons who apply to him for the performance of notarial actions, colleagues by profession, by the notary chamber, state and local authorities, the public, the media.
The Law of the Republic of Kazakhstan dated 14 July 1997, No. 155., determining the organizational and legal basis for the activities of the notary.
The Law of the Republic of Kazakhstan dated June 11, 2003 No. 435-II «On Compulsory Insurance of Civil Liability of Private Notaries», which establishes the obligation of a private notary to compensate for harm caused as a result of notarial actions.
The Law of the Republic of Kazakhstan dated July 26, 2007 No. 310-III “On state registration of rights to real estate”, which establishes requirements for electronic registration of rights to real estate by a notary.
The rules for the performance of notarial acts by notaries approved by Order of the Minister of Justice of the Republic of Kazakhstan dated January 31, 2012 No. 31.
Rules for notarial office work, approved by order of the Minister of Justice of the Republic of Kazakhstan on January 31, 2012 No. 32, establishing a unified procedure for conducting notarial office work, an electronic register in the Unified Notarial Information System.
In the field of legalization:
Law of the Republic of Kazakhstan dated December 30, 1999 N 11-II “On the accession of the Republic of Kazakhstan to the Convention abolishing the requirement of legalization of foreign official documents” (hereinafter referred to as the Hague Convention).
Consular charter of the Republic of Kazakhstan, approved by the Decree of the President of the Republic of Kazakhstan dated April 25, 2016 No. 240.
The rules for the legalization of documents approved by the Order of the acting Minister of Foreign Affairs of the Republic of Kazakhstan dated December 6, 2017 No. 11-1-2 / 576.
2. Legal status of notaries and competent authorities carrying out the legalization of documents
Notary in the Republic of Kazakhstan is a legal institution for the provision of qualified legal assistance, ensuring the protection of the rights and legitimate interests of individuals and legal entities by performing notarial actions.
The right to perform notarial acts are possessed by:
1) notaries working in public notary offices (public notaries) and notaries in private practice (private notaries);
2) officials of the apparatus of akims of cities of district significance, settlements, villages, rural districts, authorized to perform notarial actions;
3) persons performing consular functions on behalf of the Republic of Kazakhstan;
4) other persons authorized by the law on notaries to perform notarial acts.
Legalization of documents is carried out:
1) on the territory of the Republic of Kazakhstan – by the Consular Service Department of the Ministry of Foreign Affairs of the Republic of Kazakhstan;
2) outside the Republic of Kazakhstan – by foreign establishments of the Republic of Kazakhstan.
The following state bodies have been identified as organizations with the authority to affix the apostille:
1) Ministry of Justice of the Republic of Kazakhstan;
2) Ministry of Education and Science of the Republic of Kazakhstan;
3) Ministry of Internal Affairs of the Republic of Kazakhstan;
4) Committee of Information and Archives of the Ministry of Culture and Information of the Republic of Kazakhstan;
5) Committee on Judicial Administration under the Supreme Court of the Republic of Kazakhstan;
6) Ministry of Finance of the Republic of Kazakhstan;
7) General Prosecutor’s Office of the Republic of Kazakhstan;
8) Ministry of Defense of the Republic of Kazakhstan.
3. Transactions subject to notarization
In cases established by the laws of the Republic of Kazakhstan or by agreement of the parties, written transactions are deemed to have been completed only after their notarization.
Failure to comply with the requirement for notarization entails the nullity of the transaction with the consequences provided for in the Civil Code.
If a transaction that requires notarization has actually been executed by the parties or one of the parties, its content does not contradict the legislation and does not violate the rights of third parties, the court, upon the application of the interested party, has the right to recognize the transaction as valid. In this case, the subsequent notarization of the transaction is not required.
The following transactions are subject to mandatory notarization:
1) a power of attorney for the right to manage someone else’s property, in accordance with paragraph 2 of Article 167 of the Civil Code;
2) a power of attorney for the right to make transactions by a representative, in turn, requiring notarization, in accordance with paragraph 2 of Article 167 of the Civil Code;
3) powers of attorney issued by way of transfer, in accordance with paragraph 2 of Article 169 of the Civil Code;
4) transactions on the alienation of the share of participants – individuals in the authorized capital of business partnerships in accordance with paragraph 2 of Article 59 of the Civil Code;
5) an annuity agreement, in accordance with Article 518 of the Civil Code;
6) a will, in accordance with Article 1050 of the Civil Code;
7) a marriage contract in accordance with paragraph 2 of Article 40 of the Marriage (Matrimony) and Family Code;
8) agreements on the payment of alimony, in accordance with Article 158 of the Code of the Republic of Kazakhstan «On marriage (matrimony) and family»);
9) a surrogacy agreement, in accordance with paragraph 1 of Article 54 of the Code of the Republic of Kazakhstan «On marriage (matrimony) and family»;
10) an agreement on the division of the common property of the spouses, in accordance with paragraph 2 of article 37 of the Code of the Republic of Kazakhstan «On marriage (matrimony) and family».
At the same time, it should be borne in mind that, in addition to the above cases specified by the legislator, notarization of transactions is mandatory, also in cases provided for by the agreement of the parties, or at the request of the second party to the transaction, although, according to the law, for transactions of this type, the notarial form was not required .
In the above list, there is no requirement for a mandatory notarized form of real estate transactions. At the same time, notarization of a real estate transaction can exclude or reduce the likelihood of its invalidity. Firstly, thanks to the unified notarial information system (hereinafter – ENIS), the notary, when performing notarial actions, requests information about individuals, legal entities and real estate online, which allows you to make sure that there are no encumbrances or seizure on it; secondly, the notary checks the legal capacity of legal entities and the powers of their representatives, the legal capacity of individuals; thirdly, it certifies the authenticity of the signatures of the parties when concluding an agreement; fourthly, safe and convenient execution of monetary mutual settlements on a transaction through a notary’s deposit.
4. Procedure for notarization of real estate transactions
The agreement on the alienation or pledge of immovable property shall be certified at the location of this property. In this case, the notary must be presented with documents confirming the ownership of the alienated or mortgaged property.
In case of certification of transactions with real estate, the notary must establish the legal regime of the land plot on which the alienated real estate objects are located and determine the powers of the owner of the land plot (land user) to alienate his rights.
When certifying transactions with real estate, the notary receives information about the registered rights (encumbrances) to real estate and its technical characteristics through the ENIS from the state database «Register of Real Estate».
Certification of transactions with real estate and the issuance of certificates subject to state registration is allowed in the absence of encumbrances, with the exception of some cases established by law.
5. Procedure for apostille and legalization of foreign documents
Consular legalization rules
Consular legalization (hereinafter – legalization) consists in checking the compliance of documents with the current legislation of the host state and is the establishment and certification of the authenticity of the signature of an official and the seal on such documents in order to use them in another state.
Documents are accepted for legalization, both in originals and in notarized copies. If legalization in a foreign diplomatic mission or overseas establishment is conditioned by the submission of a translation of a document from the state or Russian language into a foreign language, then the legalization of a notarized document in the Department can be performed together with its translation.
The Consular Service Department legalizes:
1) documents originating from organizations and institutions of the Republic of Kazakhstan, notaries and persons authorized to take actions to certify documents intended for presentation outside the Republic of Kazakhstan;
2) documents originating from foreign organizations and institutions, if they are previously legalized in a diplomatic mission or consular office of a foreign state of origin of documents, accredited in the Republic of Kazakhstan;
3) documents originating from foreign organizations and institutions, if they are previously legalized in a diplomatic mission or consular office of a foreign state accredited in the Republic of Kazakhstan, carrying out concurrently a representative office of a foreign state of origin of documents in the Republic of Kazakhstan.
The consul, having made sure that the document submitted for legalization complies with the Rules, legalizes the document by affixing the legalization inscription of the foreign institution on the document itself in the prescribed form.
If the country in which the document is supposed to be used is a party to the Hague Convention, then a more simplified apostille procedure can be used, which, in comparison with legalization, is carried out rather quickly.
In accordance with the Hague Convention, a special stamp (apostille) is affixed to documents made by the competent authorities of one state and intended for use on the territory of another state. According to Article 5 of the Convention, the apostille certifies the authenticity of the signature, the quality in which the person who signed the document acted, and, if appropriate, the authenticity of the seal or stamp that affixes this document.
The signature, seal or stamp affixed by the competent authority to the apostille does not require any further certification or legalization, and the document affixed to the apostille can be used in any of the countries participating in the Hague Convention.
The following are considered as official documents subject to apostille:
1) documents emanating from a body or official subject to the jurisdiction of the state, including documents emanating from the prosecutor’s office, court clerk or bailiff;
2) administrative documents;
3) notarial deeds;
4) official marks such as registration marks; visas confirming a specific date; assurances, signatures on a document not certified by a notary.
However, this Convention does not apply to:
a) documents executed by diplomatic or consular agents;
b) administrative documents directly related to a commercial or customs operation.
The apostille can be drawn up both in one of the official languages of the Convention (French or English), and in the national language of the state that affixed the apostille. In practice, the inscriptions on the apostille are often duplicated in two languages (one of the languages of the Convention and the national one). The title “Apostille” must be in French.
Legalization of commercial documents
There are a number of documents that are not subject to either consular legalization or apostille. Basically, this applies to commercial documents: contracts, invoices, bills of lading, various commodity-administrative documents and other documents related to foreign economic activity, and for them there is a separate procedure – legalization of the document in the National Chamber of Entrepreneurs of the Republic of Kazakhstan “Atameken”, but with subsequent legalization at the consulate of the country of destination.