I. Introduction
As talked about in a earlier put up, Morocco shouldn’t be solely the MENA Arab jurisdiction that has ratified the most important variety of the HCCH Conventions (7 in whole), but additionally a rustic the place the HCCH conventions have been actively utilized (see right here on the appliance of the HCCH 1980 Youngster Abduction Conference, and right here for a case involving the appliance of the HCCH 1996 Youngster Safety Conference). The applying of the HCCH Conventions in Morocco provides worthwhile insights into how these HCCH devices function inside an Islamic context, difficult the broadly held assumption of the existence of an Islamic exceptionalism (although such exceptionalism does exist, however to a various diploma throughout the Muslim-majority nations. See e.g. Béligh Elbalti, “The Recognition and Enforcement of International Filiation Judgments in Arab International locations” in Nadjma Yassari et al. (ed.), Filiation and the Safety of Parentless Kids (T.M.C. Asser Press, 2019), 373-402).
Within the case reported right here, the authenticity certificates of conversion to Islam issued in Spain and to which an Apostille was connected was the essential challenge that the Supreme Courtroom needed to tackle. It have to be admitted nonetheless from the outset that the case didn’t instantly contain the interpretation and the appliance of the HCCH 1961 Apostille Conference – formally often called Hague Conference of 5 October 1961 Abolishing the Requirement of Legalisation for International Public Paperwork. Nonetheless, the case does increase some attention-grabbing points relating to the admissibility of apostillised paperwork (i.e. doc for which an Apostille has been issued). The case additionally brings to mild a major concern relating to interfaith successions from a personal worldwide legislation perspective within the MENA Arab area, notably in Morocco. Nevertheless, whereas the latter challenge is especially necessary, for the sake of brevity, the main target right here can be positioned d on the implication of the Apostille Conference on this case.
II. Info
The case entails a dispute over inheritance of A (apparently a Moroccan nationwide). After A’s dying, his heirs (collectively right here known as “Y”) issued a certificates of inheritance that excluded his spouse, a Spanish nationwide (right here known as “X”) from A’s inheritance. X contested this within the Household Courtroom, claiming her authorized rights as A’s widow. Shae argued that Y had unfairly excluded right here on the grounds that she was not Muslim, regardless of having transformed to Islam by declaring her religion within the presence of an imam in a mosque in Spain earlier than A’s dying, and that she was handed over a certificates confirming her conversion. Nevertheless, as a result of emotional toll of A’s sudden dying she forgot to carry the certificates along with her on the time of A’s dying, and to rectify this, she obtained an official notary doc confirming her conversion. In assist of her request to be included within the listing of A’s heirs, X submitted numerous authorized paperwork as proof, together with the certificates of her conversion to Islam she obtained in Spain with an Apostille connected to it.
Y, nonetheless, requested to dismiss the declare arguing, inter alia, that X was nonetheless Christian on the time of A’s dying, that the conversion declaration that she made after A’s dying had no impact and couldn’t make from a authorized inheritor, due to this fact, she was not entitled to inheritance since there might be no inheritance between a Muslim and a non-Muslim. Y additionally argued that her certificates of conversion obtained in Spain was void and had no authorized validity even when an Apostille is connected to it.
The Household Courtroom, as the primary occasion courtroom, dominated in X’s favor and acknowledged her proper to inherit. The choice was later appealed on the grounds, amongst others, X’s conversion to Islam was fabricated as she was seen performing Christian rituals on the funeral. Y additionally filed a separate problem to the authenticity of her international certificates of conversion to Islam on the grounds that the certificates was cast. The Courtroom of Attraction, nonetheless, dismissed the enchantment and upheld the Household Courtroom’s ruling in X’s favor.
Dissatisfied, Y filed an enchantment to the Supreme Courtroom.
Earlier than the Supreme Courtroom Y argued, inter alia, that the Spanish conversion certificates was a mere piece of paper with none official administrative references with a signature attributed to a Mosque in Spain. Nonetheless, the courtroom accepted this certificates with out verifying its authenticity or the context by which it was issued, akin to by consulting related data or conducting a judicial investigation with Spanish authorities underneath the judicial cooperation settlement between Morocco and Spain, and in addition didn’t confirm whether or not the widow was even in Spain on the date the certificates was issued.
III. The Ruling
In its ruling No. 167 of 5 April 2022, the Moroccan Supreme Courtroom admitted the enchantment and overturned the appealed determination with remand stating as following:
“[…] in accordance with the final paragraph of Article 40 of the conference signed between Morocco and Spain on judicial cooperation in civil, business, and administrative issues of 30 Might 1997, if there’s a critical doubt relating to the authenticity of a doc issued by the judicial authorities or different authorities of both nation, this must be verified by the central authority of each nations.
[Although] the courtroom of the appealed determination ordered an investigation as a part of activating the process for alleged forgery towards the certificates of conversion to Islam [……] issued by the pinnacle of the Islamic Heart in Spain, and registered underneath quantity (…..) within the registry of Islamic associations on the Ministry of Justice there, [it] failed to watch the procedures stipulated in Article 89 of the Code of Civil Process, notably, by listening to the testimony of the one who issued the certificates and inspecting its authenticity, regularity, the accuracy of the knowledge it contained and its date; and that by the use of a rogatory mission to the competent Spanish authorities in accordance with Article 12 of abovementioned Conference [of 1997], with the intention to base its determination on verified details.
Consequently, the courtroom’s determination lacked a authorized foundation and was poor in its reasoning [……], and due to this fact, it have to be overturned.”
IV. Feedback
1. In regards to the HCCH 1961 Apostille Conference
The HCCH 1961 Apostille Conference is undoubtedly one of the profitable HCCH conventions, with its 127 contracting events (as of the date of the writing). The Conference’s standing desk exhibits that greater than 15 nations are Muslim-majority jurisdictions or have authorized methods influenced by or primarily based on Islamic legislation. Amongst them are 5 Arab jurisdictions from the MENA area: Saudi Arabia, Tunisia, Morocco, Bahrain and Oman. Marocco ratified the Conference on 27 September 2015, and it entered into power on 14 August 2016.
As is broadly identified, the Conference goals at simplifying the method of authenticating public paperwork to be used overseas. The Apostille Conference eliminates the necessity for a fancy and time-consuming legalization course of by introducing a standardized certificates known as an Apostille. As such, the Apostille, issued by a delegated authority within the State of origin, is a simplified certificates that confirms the authenticity of the doc’s origin by certifying the signature on the doc is real, thus permitting it to be acknowledged in one other Contracting States, the State of vacation spot. (For particulars, see the HCCH Everlasting Bureau, Sensible Handbook on the Operation of the Apostille Conference (2nd ed. 2023) pp. 25-34 hereafter the “Apostille Handbook”)
A number of key ideas that underpin the Apostille Conference. These embrace the next: First, the Conference applies primarily to “public paperwork” (the Apostille Handbook, p. 51, para. 102). Second, the Conference relies on the premise that the Apostille solely verifies the authenticity of a public doc’s origin (and never the content material) by certifying the signature, the signer’s capability, and, the place relevant, the seal or stamp (see the Apostille Handbook, p. 31, para. 22-23).
The case commented right here gives worthwhile insights regarding these two factors. The primary challenge is whether or not a certificates of conversion to Islam, issued by a mosque or an Islamic middle in Spain, qualifies as a “public doc” underneath the Conference. Even when it does qualify, the second challenge issues the probative worth of an apostillised doc, notably when the authenticity of the doc itself is contested for forgery or fabrication.
Because the ruling of the Supreme Courtroom above signifies, the Courtroom didn’t tackle the primary query, arguably assuming the validity of the Apostille with out additional examination. Nevertheless, a better overview of the primary precept talked about above means that this challenge will not be as simple because the Courtroom appeared to have presumed. This may be supported by the truth that the Courtroom targeted extra on the allegation of forgery of the apostillised certificates, implying that the validity of the Apostille itself was not in query.
2. Certificates of Conversion to Islam as a “public doc”
Can a certificates of conversion to Islam issued in Spain be certified as a “public doc” underneath the Apostille Conference? Answering this query first requires an understanding of what constitutes a “public doc” underneath the Conference.
a) What’s a public doc underneath the Conference?
Though the Conference enumerates in a non-exhaustive listing the paperwork deemed to be “public paperwork” (artwork.1(2)), and primarily depends on the nationwide legislation of the State of origin (i.e. the place the doc was executed) to find out whether or not the doc qualities as “public doc” (the Apostille Handbook, p. 52, para. 105), it gives for a helpful criterion to find out whether or not a doc is a “public doc”. In line with the Apostille Handbook, “the time period “public doc” extends to all paperwork apart from these issued by individuals of their non-public capability. Subsequently, any doc executed by an authority or individual in an official capability (i.e. performing within the capability of an officer approved to execute the doc) is a public doc” (p. 51-52, para. 103). Paperwork that don’t meet this criterion are usually not thought of “public paperwork” underneath the Conference (the Apostille Handbook, p. 64, para. 182).
There are, nonetheless, exceptions. A doc should be apostollised whether it is notarized or formally licensed (artwork. 1(2)(c) and (d). See the Apostille Handbook, p. 54, paras. 116-122. On the instance of academic paperwork, together with diplomas, see p. 59, paras. 150-153). As well as, “[t]he legislation of the State of origin could contemplate spiritual paperwork, in addition to paperwork executed by official spiritual courts, to be of public nature and due to this fact a public doc underneath the Conference” (See the Apostille Handbook, p. 65, para. 185).
b) The Public nature of Certificates of Conversion to Islam
In sure nations, certificates of conversion to Islam are clearly acknowledged as public paperwork. For instance, in lots of Muslim-majority jurisdictions such certificates are issued by public organs or establishments affiliated with the state, such because the Ministry of Spiritual Affairs, or the Ministry of Justice (e.g., within the UAE) or by approved individuals (such because the Adouls in Morocco). In such circumstances, the conversion certificates possesses the requisite “public” nature underneath the Apostille Conference.
Nevertheless, in lots of non-Muslim nations, no particular public administrative authority is liable for overseeing spiritual conversions or issuing certificates to that impact. As a substitute, people wishing to transform to Islam sometimes method a neighborhood mosque or Islamic middle. There, the individual publicly professes their declaration of religion in entrance of an imam and witnesses. Whereas a certificates is commonly supplied for numerous functions (e.g., marriage or pilgrimage), these paperwork lack the “public” character vital for apostillasation underneath the Apostille Conference.
Within the case commented right here, the abstract of details signifies that the Spanish widow had embraced Islam earlier than an imam at a mosque. The Supreme Courtroom’s ruling, nonetheless, refers to her conversion in entrance of the pinnacle of an Islamic Heart in Spain registered with the Spanish Ministry of Justice (though it’s attainable that the mosque was a part of the Islamic middle, and the pinnacle of the Islamic middle serves additionally served because the imam). In any occasion, it uncertain that both the Imam or the pinnacle of the Islamic middle acted “within the capability of an officer” to challenge the conversion-to-Islam certificates. Certainly, even when registered as non-profit or spiritual group or affiliation, mosques and Islamic facilities usually don’t possess the authority to challenge “public paperwork” inside the which means of the Apostille Conference. This is applicable to different sorts of certificates these facilities or mosques could challenge akin to marriage or divorce certificates. Such certificates are usually not acknowledged by the states except duly registered with civil authorities. The place registration shouldn’t be attainable, these paperwork primarily serve spiritual functions inside the neighborhood.
There’s additionally no indication within the Supreme Courtroom’s determination that the certificates in query falls underneath the exceptions outlined above (see IV(2)(a)). Subsequently, it stays unclear on which grounds the certificates of conversion was apostillised, as “[t]he Conference doesn’t authorize the issuance of an Apostille for a doc that isn’t a public doc underneath the legislation of the State of origin [Spain in casu], even when the doc is a public doc within the State of vacation spot [Morocco in casu]” (the Apostille Handbook, p. 52, para. 107).
3. Contestation for forgery of an apostillised doc
It’s price recalling right here that the case reported right here involved the invalidation of a certificates of inheritance that excluded a Spanish widow, who claimed to have transformed to Islam, from her deceased husband’s property. To assist her declare, the widow submitted, amongst different paperwork, an apostillised certificates of conversion to Islam issued in Spain. Earlier than the Supreme Courtroom, the appellants argued that the certificates of conversion had no authorized worth as a result of it was cast and lacked adequate components to determine its authenticity. The Supreme Courtroom admitted the enchantment on the grounds that the authenticity of the certificates needed to be study pursuant to the related provisions of the 1997 Moroccan-Spanish Conference on Authorized Help in Civil, Industrial and Administrative Issues.
The place of the courtroom must be accredited on this specific level. the Apostille Handbook makes it clear that the Apostille has no impact on the admissibility or probative worth of a international public doc (the Apostille Handbook, p. 32, para. 25). Certainly, because the Apostille doesn’t relate to or certify the content material of the underlying public doc, points in regards to the authenticity of the international public doc and the extent to which it could be used to determine the existence of a truth are left to be handled underneath the legislation of the State of vacation spot. On this case, the relevant provisions are discovered the Moroccan code of civil process and the Hispano-Moroccan bilateral conference on judicial help, as indicated within the Courtroom’s determination.
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