In 1961 the Hague Convention on Apostilles sought to simplify the international use of legal documents. As surreal as it may seem, this is not the case between Italy and the Dominican Republic, countries where the Convention has been in force since 1990 and 2010, respectively.
In the Dominican Republic, when a notary legalizes the signing of a document, his signature is in turn legalized by the Attorney General’s Office (PGR), which adds a QR code with the information corresponding to the content and the name of the notary. The signature of the PGR official is subsequently legalized by an apostille issued by the Ministry of Foreign Affairs (MINREX).
Simple, right?
However, there is a divergence in the way the apostille is drafted, the form of which requires the indication of the name of the person whose signature is the subject of legalization.
The Dominican apostilles indicate the name and function of the PGR official, and MINREX itself is categorical in ensuring the validity of the procedure and its compliance with the Convention.
In practice, it may happen that the procedure is questioned by Italian notaries. It is worth clarifying that what is being questioned is not the veracity of the document, but rather the way it was written: it is maintained that the signature legalized on the apostille must be that of the notary before whom the original document was signed, and that this alleged formal defect prevents its use.
These are not individual opinions, as they are also held by the International Studies Office of the Italian College of Notaries.
This institutional support gives the case a diplomatic dimension. Countries adhering to the Convention have the obligation to apply it, except in cases of fraud, and its spirit – at least as regards forms – is flexible.
It is evident that one of the two positions is not correct. It could be argued, applying Occam’s razor, that it is implausible that a country has issued incorrect apostilles for fifteen years. Furthermore, the Dominican Republic’s two-stage procedure, although not recommended by the Hague Conference on Private International Law (HCCH) in its Handbook on apostilles, coincides with that of many Latin American countries.
In any case, the problem requires a solution, also due to the absence of viable alternatives for those who are not Italian citizens registered with the AIRE, since, since the accession of the Dominican Republic to the Convention, the use of the Italian consulate for notarial purposes is restricted to that category.
There is a clear diplomatic aspect. One of the countries is failing to comply with the Convention. Diplomatic representations and foreign ministries have been informed. The former Italian ambassador and officials from the Dominican diplomatic representation in Rome have shown sensitivity in this regard. This could allow the matter to be brought to the attention of the Government of the Netherlands, depositary of the Convention.
There is also a doctrinal aspect. Notarial associations are interested in the mechanism being usable fluently. It would be desirable for its highest authorities to address the issue together with the HCCH and for a consensus to be reached on the correct procedure, without entrenching itself in interpretative certainties or transferring responsibility exclusively to government authorities.
