Mr. Aliriza Beshi and Mr. Sergei Panchuk both practice the honorable profession of being a notary. One of them is a notary in Prizren, about 20 km from Albania, while the other is in Vladivostok, a peripheral city of the Russian Federation, located around 12,000 km away from Albania.
The documents that these notaries compile and issue are fully recognized as legal in Albania, with one difference: The documents of one of the notaries get accepted without any addition formality, while the documents of the other first need to be sent to the capital city of the country of origin to obtain an apostille stamp, otherwise, they would not have any legal value in Albania. In your opinion, which documents get accepted without the apostille stamp in Albania: a) documents of the notary in Prizren, or b) documents of the notary in Vladivostok?
A trader from the capital of the Czech Republic, Prague, and another from Gjakova decide to grow their businesses by opening branches in Tirana.
They both need to apply for a residence permit and business registration in Albania, providing Albanian authorities with various documents from their countries of origin, such as criminal record, personal certificate, tax certificates, company extract, etc.
Same as above, one of the traders can bring all the documents in Tirana as soon as the country of origin issues them, while the other trader only after receiving the documents from the local authorities and sending them to the right office to get the apostille stamp of his country. In your opinion, which of these documents do Albania accept without an apostille stamp: a) the documents of the trader from Gjakova, or b) the documents of the trader from Prague?
The logical and the legal answers to the above questions should have been the same. But in fact, the logical answer is “a”, while the legal one is “b”.
Why the apostille stamp was created, and why it should be abolished
The apostille stamp system was enacted in 1961 as a need to confirm the validity (or legalization) of public documents issued by a particular state (A) that would be used in another country (B). The documents at stake include those issued by a public authority in the state A, such as birth, marriage, and death certificates, heritage testimonies, criminal records, court decisions, property attestations, diplomas, licenses, company extracts, authorizations and notarial deeds, tax records and any other kind of attestations.
Before 1961, the system of legalizing public documents of state A that would be used in state B was immensely bureaucratic, nonstandardized, and inefficient. Different states had different requirements, such as confirmation of documents through consulates, prefectures, and offices of all different kinds.
On October, 5 1961, The Convention Abolishing the Requirement of Legalisation for Foreign Public Documents was signed, through which the member states created the apostille stamp and pledged to recognize as valid any foreign document sealed with it, without the need for additional formalities.
Some signatory states of the Convention put the “restraint” toward some other members of the Convention, since for different reasons they preferred the old pre-Apostille system of legalization. This was the case of Greece, Italy, Spain, etc., which put the restraint toward Albania.
However, for the citizens of the countries that did not put restraints toward each other, the Apostille system constituted significant progress in comparison to the previous system.
Some countries went further in simplifying the interaction of their citizens by entering into bilateral agreements with each other to completely abolish the obligation for the apostille, thus recognizing each other’s documents with no conditions.
According to the Ministry of Foreign Affairs, Albania has such agreements with Russia, Hungary, the Czech Republic, Sllovakia, Romania, and Bulgaria. These agreements that I could not find online, were probably signed during the communist period when these countries had close relationships.
In some cases, the media reported incorrectly that the obligation for the apostille was abolished between Albania and Greece, as well as Italy, etc., when in fact only the restraint was removed that these countries had put toward Albania in the Convention of 1961, stepping away from the pre-apostille system into the apostille system.
Thus, currently Albania has bilateral agreements for abolishing the apostille stamp only with Russia, Hungary, the Czech Republic, Sllovakia, Romania, and Bulgaria. This implies that Albania recognizes public documents issued by these states without the need for any additional formalities (except for translation). This explains the attitude of Albanian authorities toward documents issued in Vladivostok and Prague.
European Union members have as well abolished the apostille system between each other through the Regulation 2016/1191 of the European Parliament and of the Council of 6 July 2016 (article 4).
Meanwhile, Kosovo which is also a member of the Convention since 2016, has not entered into any agreement for abolishing the apostille stamp with any particular state. This means that any public document issued in Albania, as in any other country, should have the apostille stamp in order to be used in Kosovo.
It should be admitted that in practice, most of the Kosovar authorities such as the Business Registration Agency, courts, or civil status offices — differently from their colleagues in the Republic of Albania — accept Albanian documents even without the apostille. This practice should be praised, however, it leaves Albanian citizens at the mercy of the mood of the officials they encounter in Kosovo.
Also, at the end of the day such practice is not in line with the applicable legal rules that require every foreign document to be stamped. Consequently, even if the document is not rejected immediately, there always exists the risk that the legal action may be questioned later by an audit or control process which would bring negative consequences for both the citizen and the official.
Imperative agreement between Kosovo and Albania
In 2020, the validity of foreign documents can be verified through modern systems of exchanging information or other ways. This is even more true for countries like Kosovo and Albania, which have significant exchanges in almost every field.
Consequently, the obligation to apostille documents is a redundant bureaucracy that has no reason to exist either in theory or in practice between Kosovo and Albania. Therefore, in the next meeting between the two governments, announced for the second half of September, it would be appropriate to finally sign the agreement for abolishing the apostille.
The agreement can be formulated based on the current agreement that Albania has with the former communist countries and/or can be inspired by the aforementioned EU regulation, thus marking another small step of progress in the field of legal approximation with the EU.
Either way, there is no longer any pretext for not abolishing this meaningless bureaucracy that should have been abolished years ago.
Feature image: Arrita Katona / K2.0.