Postcard from Bishkek

Last week I had to go visit a notary and get a stamp on the card bearing the specimen signatures for the banks … in theory, it seems to me, it should have been a simple process … back in the UK all that was required was for to simply fill in a cord at the bank … but I was forgetting the local bureaucracy.

Its not the first time we’ve had to do this, so I thought I knew the routine and gathered togethger all the necessary documentation: Charter and Founders’ Agreement, Certificate of registration, documents appointing each person to their post, copies (and originals) of passports of the people concerned – who all had to attend in person, … and a number of  other documents – just in case.

As the notary asked for a document, we said, OK – and put it on the table in front of him … I even if I say so myself, I think he was impressed.

Then, unfortunately, he began to read them …

… and he spotted something that called for yet another document we didn’t have with us.  It was just a little detail and something that no-one had ever noticed before but as he was about to refuse to conclude the business … I had to run back to the office to retrieve it.  Fortunately, I found it and laid that on the table … he picked it up, read it, smiled and said “Now, that’s a completely different story.”

Sometimes the bureaucracy that you encounter when trying to do business here in Kyrgyzstan can be quite frustrating.

A few years ago we tried to arrange to get milk delivered regularly to the hotel.  As well as being assured a regular and reliable source of fresh milk, (instead of having to send someone off to the shops), another advantage was that we would then be able to get invoiced one a week or once a month, (instead of having to have the cash to hand and paying upon delivery).

I though it would be a simple matter … but, oh no.  They insisted that we had to have a contract.  OK – no problem.

But … in order to sign the contract, they said that we had to write them a zayavleniya (an application) to open an account and provide them with copies of our Charter and Articles of Association; a copy of our certificate of our state registration, proof that I was the General Director and entitled to conclude contracts; details of our bank account – although it seemed to me that it was more important for us to have details of theirs – so that we knew where to send the money; our tax registration and a certificate from the authorities that he had no debts before the budget.

Whereas the zayevleniya obviously had to be an original letter, we couldn’t provide simple photocopies of the other documents – they all had to be certified as being a “true copy”.  In some cases, this had to be done by a notary, in other cases I had to write “kopiya vernaya” (a true copy) on them, sign, stamp and date them, whilst in others the lawyers for the company had to sign that they had seen the originals and certified that they were indeed a “true copy”.

Although I could see some logic behind the mountain of paperwork that we had to amass, it still seemed to me to be a case of overkill.

The notary is fairly well established profession here.  We don’t have many of them back in Britain, (although I had actually visited one once before I first came here – in his capacity as a Commissioner of Oaths, he recorded the fact that he heard me make a declaration); apparently there are only something like a thousand in the whole of England and Wales, (and most of them are solicitors), here it sometimes seems as if there is one on every street corner.

Although it’s a bit more complicated than this – the situation depending on the local legal system, a Notary is someone with specialized legal training who is licensed by the state to perform certain specific routine and non-contentious actions in legal affairs – such as witnessing signatures on documents.  In some cases they actually draw up the necessary documents to act as a legal instrument.  They may be lawyers, (as in the case of English solicitors), but that’s not always the case.  In the parts of the US, for example, where many of the notaries are “lay people” – not lawyers but people that have completed specialized training courses, they are explicitly debarred from giving legal advice and are restricted to exercising certain specific functions.

The office of Notary dates back to the days of the Roman Republic – even before the Roman Empire.  They were originally scribes, (scribae),  who would take down notes, (often in a form of shorthand – notae), and then transcribe them and codifying them into a formal protocol and issuing a formal certificate recording and fixing a specific legal fact such as an agreement or contract.

Over the centuries the duties of the Notary came include the drawing up, attesting and certifying all sorts of documents – some official, others commercial or private: property deeds, last will and testaments, conveyances of real estate, powers of attorney and so on.   The signature and seal on the document acted as authentication of their validity, making them acceptable to the judicial or other authorities in another jurisdiction.   The notary would have a register and copies of the documents.

 

Typically, a notary will:

• satisfy themselves of the identity of the person – for example by examining the passport or other identify document;
• satisfy themselves that the person is of sufficient age and capacity to do whatever the document calls for – for example, I may have to produce my letter of appointment as General Director giving me the authority to sign documents on behalf of the company … and because I am a foreigner I have to add a note that I have read and understood the document, (or have had it translated and explained to me … which may also need to be attested to by a qualified interpreter – and the certificate of the fact duly notarized);
• in the case of
• • certifying that a photocopy is a true copy of the original, then they have to go through comparing them page by page,
  • witnessing signatures on a document, then they compare that with the specimen on the identity document
• and then prepare any necessary notarial certificate – which in most cases these days is easily because the format is fairly universal and is done by using a special stamp applied to the document- then signing, stamping and dating it;
• taking the fee – and issuing a receipt – the fees are normally set by the government;
• recording everything in a special register;
• taking copies to be kept in the archive so that they can be retrieved at a later date – for example, if the original gets lost.

 

Most countries require commercial or personal documents which originate from (or are signed in) another country to be notarized before they can be used, or officially recorded, or before they can have any legal effect in their territory.

This isn’t always as simple as it might seem – after all, how can the authority be certain that the notary’s certificate issued in another country is itself valid?

The answer is a complicated system of “legalization”, where the notary’s signature and stamp are also authenticated by the Ministry of Foreign affairs or Justice Ministry of the issuing country or the appropriate embassy of the receiving country.

BU: Kyrgyzstan is one of the signatories to the the Hague Convention of October 5, 1961, abolishing the requirement of consular legalization for foreign public documents.  There are still requirements, however, for an Apostille – a certificate confirming the capacity of the government official signing the document, authenticity of the signature and, where appropriate, of the seal or stamp on the document. Documents with Apostille do not require any further legalization.   However, official organizations in the Kyrgyz Republic may not accept foreign documents if they are not accompanied by a certified translations; many organizations require certified translations to be legalized by consular offices of the Kyrgyz Republic in the countries where the documents originated.   (To be fair, this is fairly common international practice.)  As a result, it is advisable that documents intended for use in Kyrgyzstan should be certified as to the accuracy of translation and proper legalization at the consular offices of the Kyrgyz Republic

 

The rules governing notaries varies from jurisdiction to jurisdiction – not simply from country to country. Each of the States in the US, or in Australia, each of the provinces in Canada have their own provision and even in the United Kingdom, the situation in England and Wales is different from that in Scotland.

Here in Kyrgyzstan there is law, About the Notary, (No. 70, dated 30th May, 1998, although it has been amended several time),  which governs the situation.  There are State Notaries, who are civil servants, and Private Notaries who can perform only certain delegated functions.  It defines Notarial actions as “actions of the notary under the certificate of indisputable facts, legal events having legal value, witnessing of documents, giving to documents of executive force and legal reliability and other actions directed on protection of the rights of citizens and legal bodies, their legitimate interests”.

These can include:

1. certifying transactions;
2. granting certificates on the property right to a share in the general property of spouses;
3. certifying the fidelity of copies of documents and extracts from them;
4. certifying the authenticity of signature on documents;
5. certifying the fidelity of translation of documents from one language on another;
6. certifying the fact of finding of living person;
7. certifying the presence of of a person in a certain place;
8. certifying the identity of a person with that represented in a photograph;
9. certifying the time when documents are presented- such asdoverrennosts (powers of attorney) or contracts;
10. transferring statements from both physical and legal bodies to another one ;
11. accepting on deposit sums of money and securities;
12. making executive inscriptions;
13. making protests of bills;
14. showing checks to payment and certify a nonpayment of checks;
15. accepting documents for safekeeping;
16. making sea protests – in order to protect the rights of ship owners for an incident involving their vessel;
17. providing proofs;
18. certifying the contract on the gratuitous assignation of securities for an inadequate person subject to legalization.

In addition, a State notary can also

1. impose and remove prohibitions concerning the alienation of property,
2. grant certificates on the right to an inheritance and take measures to protection of hereditary property.

There are provisions in the law governing, and also official instructions, governing the carrying out of each of these Notarial Actions.

 In addition some notarial actions can be performed by law enforcement officials and Consular officials.  The transfer of certain functions has recently become quite a controversial issue.  There has been some complaint that lawyers in some of the other agencies are not properly trained and have made basic errors in the preparation and certification of some documents – leading to the need for litigation.

 

Notaries in Kyrgyzstan need to have a legal education, have at least three years practical experience, undertake a special six month training course – passing a final exam and a Notarial license.

They are prohibited from undertaking separate entrepreneurial activity other than research and teaching; to render additional intermediary services to clients when contracts are being concluding – they are, after all, meant to be independent and impartial; act on their own behalf (or for members of their immediate family or employees).

 

As it happens, the bureaucracy in the story with the notary didn’t end there … the next day he asked for a translation of my passport and two of the three banks asked for yet more documents … whoever said that computers would lead to a “paperless office” got it sadly wrong … we are being asked for more and more all the time … and I thought we were supposed to be trying to save trees.

 

Oh, yes, and for the record:  Scrivener (or scribe) was a Middle English term for a person who could read and write. This usually indicated secretarial and administrative duties such as dictation and keeping business, judicial, and historical records for kings, nobles, temples, and cities. Scriveners later developed into public servants, accountants, lawyers and petition writers … in other words, a notary.

Tags: Expat, For_the_Record, Kyrgyzstan, Life_in_Kyrgyzstan