Béligh Elbalti has an interesting report at Conflict of Laws about a Moroccan case involving the Apostille Convention. After a Moroccan man’s death, his heirs, apparently acting under Moroccan law, issued a “certificate of inheritance” identifying his heirs. They omitted his wife, who was a Spanish national, on the grounds that she was not a Muslim. I assume that under Moroccan law only a Muslim could inherit. The wife challenged her exclusion, asserting that she had converted to Islam in Spain before her husband’s death. She produced a certificate of conversion, with an apostille affixed. The heirs argued that the certificate of conversion was forged. Although the lower courts ruled in favor of the wife, the Supreme Court reversed. Here is Elbalti’s translation of the key part of the decision:

[…] according to the last paragraph of Article 40 of the convention signed between Morocco and Spain on judicial cooperation in civil, commercial, and administrative matters of 30 May 1997, if there is a serious doubt regarding the authenticity of a document issued by the judicial authorities or other authorities of either country, this should be verified through the central authority of both countries.

[Although] the court of the appealed decision ordered an investigation as part of activating the procedure for alleged forgery against the certificate of conversion to Islam [……] issued by the head of the Islamic Center in Spain, and registered under number (…..) in the registry of Islamic associations at the Ministry of Justice there, [it] failed to observe the procedures stipulated in Article 89 of the Code of Civil Procedure, particularly, by hearing the testimony of the person who issued the certificate and examining its authenticity, regularity, the accuracy of the information it contained and its date; and that by way of a rogatory mission to the competent Spanish authorities in accordance with Article 12 of abovementioned Convention [of 1997], in order to base its decision on verified facts.

The issue I want to address is how to figure out claims of forgery when the supposedly forged document has been apostilled. The prior post points out, correctly, that the apostille does not certify that the underlying document is true or correct. But I don’t think that means that the apostille has nothing to say about the question of forgery. Really, the only things an apostille does are to certify that the signer’s signature is genuine and to certify capacity in which the signer acted. See Convention art. 3. The apostille is “the only formality that may be required” to certify these facts.

Does this mean that the apostille is conclusive? Some US jurisdictions following the Revised Uniform Law on Notarial Acts have statutes that say yes, at least when the foreign public official whose signature is certified is a notary. For example, § 1-1231.13(d) of the District of Columbia Code provides:

An apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Hague Convention conclusively shall establish that the signature of the notarial officer is genuine and that the officer holds the indicated office.

But that seems like a bad rule. Of course, the apostille presumptively authenticates the document. But suppose the opponent of the document brought the imam to court, and he testified that he never signed the document. Or suppose the wife admits that she forged the document. Is it really sensible to say that the court in the state of destination must treat the document as authentic? The better rule is to say that the apostille is sufficient to authenticate the document. This allows the apostille to do what the Convention intended it do—eliminate the need for chain legalization—without turning it into a talisman that magically makes documents impervious to proof of fraud.

I’ll write more about this, but I thought it worthwhile just to get the basic point out there.

Photo credit: Steven J. Dunlop (CC BY-SA)