Juridical Analysis of the Authenticity of Notary Deed after Apostille is Implemented in Indonesia

One of the obstacles in international civil and commercial law practice traffic is that documents originating from abroad to be used domestically or otherwise domestic documents will be used abroad to be used as authentic evidence; it is required that chain legalisation of these documents be used be held. (Brosch & Mariottini, 2020). Of course, this procedure is not effective and efficient because the costs and time are wasted to fulfil the formalities so that the document can be used as evidence to ensure the security of every transaction that occurs (Bastos, 2019). This simplicity of formality certainly requires a way to simplify the formality, which is often difficult by not reducing the document's authenticity and the quality of proof of the document concerned (Bahri & Yahanan, 2019). Business contracts have become more efficient and are quicker to create and distribute among each party. Physical presence and signatures can be represented through digital and proof authenticity can be guaranteed through storage media that can be accessed easily and quickly (Coresy & Saleh, 2020). Almost all countries have expanded their territorial boundaries with jurisdictions through cyber laws in their respective countries. Globalisation and electronic disruption are reasons for removing and breaking legal barriers that are too strict and rigid (Perry, Hofmann & Scrivens, 2017). Law is made more flexible and adequate in meeting the needs and developments of the times (Mertokusumo, 2009). Laws that are often left behind by business transaction activities are designed to adapt and adapt to every business activity. Especially in Indonesia, various changes have been made regarding legal regulations and technical services to support Abstract


Apostille: Removing the Chain of Authenticity of Public Documents
The substance of the convention is to establish the method by which documents issued in one country are applying for legal purposes in all other signatories. The technique in this convention is in the future known as Apostille (from Latin post illa and French: marginal note) (Pertegás, 2017).
This requirement is enforced because the country of destination/recipient of the document does not know the identity, official capacity of the person signing the form, or the authority that sealed the document (Rukmana, Savitri & Padha, 2021). Therefore, certification is enforced in every country and requires every public record certified by an official who understands the document. This is behind the procedure known as "legalisation" (Hague Conference on Private International Law, 2013). Legalisation describes the process by which a signature/seal/stamp is applied to a public document as a series of authentication and certification by a public official where the final authentication by an official in the destination country (legalisation chain) can have a legal effect.

Figure 1. Legalisation Chain
With the enactment of Apostille, it can remove the legalisation process and replace it with a single formality through the issuance of an authentication certificate called "Apostille" by an authority designated by the country of origin (called "Competent Authority") (Sihombing, 2020). It is a simple process defined by the convention, which can be illustrated as follows:

Figure 2. Apostille Chain
Based on the provisions of the convention and the guidelines above, Apostille has a limited influence on the sources of the underlying public records and the quality of these public documents. Apostille has only a minor impact on (Sugianto, 2013). These restricted effects include the validation of the document's signature authenticity, the ability of the signatories and the identification of the seal or stamp in the form. The substance of the public records is unrelated to Apostille (Sugianto, 2013). Although the document's public existence means that its content is valid and accurate, it adds no legal importance or legal implications to signing such public records. Here it is recommended that the competent authorities provide notice of the restricted effects of Apostille on the HCCH Special Commission (Suwantara & Sukma, 2021).
Apostille does not specify that all private law provisions comply with public documents. Public documents shall be enforced. Personal law should establish whether a record is in general, and inspecting the defects rests with the Competent Authority. For example, a notary can do certain acts or legalise the notary concerned (Tan, 2020). Of course, the competent authority cannot be obliged to do so since an Apostille has no legal impact other than legalising the document's public roots and the publication without curing or not the defect (Tobing, 1982).
The Apostille Convention shall not affect the country of destination's right to decide the evidence validity of public records in foreign countries. Nevertheless, the convention stipulates that not every country of destination will deny Apostille, while the country of destination can determine the acceptability and evidence validity of the document. They may also set a time frame to accept external public papers (for example, documents need to be generated within a period after implementation), even though this limit cannot apply to Apostille itself (Tol, 2020). Moreover, the law of proof of the country of destination must also define how much international public records can establish those evidence. The convention shall not restrict the impact of Apostille as long as it is recognisable and is linked to the publicly released text; each published Apostille will affect. Therefore, Apostle should not be refused based on her age (Rusu, 2019). However, this does not impair the establishment of limitations on accepting public documents by the competent authorities in the country of destination based on their private law (Setiadewi & Wijaya, 2020).
Apostille cannot be implemented without the presence of a competent authority. The competent authorities play a central role and form the backbone of the Apostille's operations. They perform three essential functions: verifying the authenticity of public documents, publishing Apostille, and recording every Apostille issued in a register. The proper process of Apostille depends on the persistence, effectiveness and accuracy of these performance functions.
The Apostilles register can be saved in the paper (index card) or electronic format. Nowadays, in the digital and electronic era, most of the Competent Authorities in their respective countries keep Apostille lists in electronic format instead of paper registers. The priority of keeping logs in electronic form is because they offer the following benefits to Competent Authorities. Some of the benefits of electronic storage include 1) Ease of recording the details of each Apostille issued; 2) Easy verification of the origin of Apostille; 3) Automatic statistical creation of the Apostille service delivered by the competent authority (for example, the number of Apostilles issued during a specific period); 4) Eliminates the constraints of more miniature workspace; In January 2012, the name was changed to the electronic Apostille Program (e-APP). At its November 2012 meeting, the Special Commission acknowledged the tremendous progress in e-APP implementation that has been made since its meeting in 2009, and through e-APP has been able to enhance the effective and safe performance of the convention. Since then, many Competent Authorities have implemented one or both of these components, affirming the place of the Apostille Convention in the electronic age.

Implementation of Apostille in Notary Deed in Indonesia
Regarding the area of domicile of a notary, Article 18 paragraph (2) of Law no. 30 of 2004 concerning the Position of a Notary regulates that a Notary has an office area covering the entire province of his domicile and Article 19 paragraph (1) in conjunction with paragraph (3) UUJN regulates that Notary Public is obliged to have only one office, namely in his / her domicile and not authorised successively. -According to by continuing to carry out a position outside his / her place of domicile. Based on this explanation, the authenticity of a notary deed as an authentic deed has 2 (two) requirements, namely the requirements regarding the forms of the act and the authenticity requirements regarding the area of the notary's position of office. With the fulfilment of these 2 (two) conditions, the notary deed as a public document has met the public / general nature and is binding on a third party.
Authentication on the notary deed has two functions: a formal process (formality causa) and evidence (probation causa). Causa formality means that the deed is functioning to complete or complete a legal act, so it is not a legal act. In this context, a deed is a formal requirement for the existence of legal action. Probation is causa means that the deed has a function as evidence because, since the beginning, the act was done deliberately for later proof. The written nature of an agreement in the form of a deed does not make the deal valid but only so that it can be used as evidence in the future (Tobing, 1982). To test the authenticity of a faked notary deed from a formal aspect, it must be proven the formality of the act. That is, it must be able to prove the truth of the day, date, month, year, hour (hour) before facing, prove the truth, the parties that appear, prove what has been seen, witnessed, heard by the notary, besides that it must also be able to prove the truth of the statements or statements of the parties given/submitted in front of a notary and the correctness of the signatures of the parties, witnesses and notaries or there is a deed making procedure that is not carried out. In denial or denial of the formal aspects of a falsified notary deed, if there are parties who feel aggrieved, a lawsuit must be filed with the public court. The plaintiff must be able to prove that there are formal aspects that are violated or inappropriate in the deed concerned or the person concerned has never felt before a notary on the day, date, month, year, hour (hour) mentioned at the beginning of the deed or think that the signature in the act is not his signature if this happens the person concerned, or the said party has the right to sue the notary or other party who benefits from untruth.
Post Apostille was enforced in Indonesia as in Presidential Regulation No. 2 of 2021 concerning Post-enactment of Presidential Regulation No. 2 of 2021 concerning Ratification of the Convention Abolishing The Requirements of Legalisation For Foreign Public Documents (Convention on the Elimination of Legalisation Requirements for Foreign Public Documents) where notary deeds are included in the scope of public documents that Apostille can apply, then the principle of the authenticity of notary deeds which has been enforced can be adapted to the principles of Apostille. Apostille makes it easy to create the authenticity of foreign public documents by simplifying the chain of authenticity. The method to streamline the chain of authenticity as in Apostille should be applicable not only to use foreign public records but also in terms of each country's internal needs.
One hundred twenty countries have signed the Apostille Convention, both members of the HCCH and non-members. Apostille has been adopted by countries that adhere to common law, civil law, or mix law systems. Many countries that adhere to the civil law legal system have adopted the Apostille provisions, including the Netherlands, Germany, and France, which are the benchmarks for notary law in Indonesia. Thus, implementing Apostille as a legal unification that harmonises international civil law can be accepted by countries that adhere to different legal systems. To be able to apply Apostille in a notary deed properly so that the authenticity of the act is still fulfilled, it is necessary to distinguish between conventional and electronic application by taking into account the essential elements of Apostille, which include, among others, the Apostille Process, the Apostille Effect, and the competent authority. The Apostille process is carried out in several stages, namely Request -Verification -Issuance -Registration.
The documents carrier or party in the document or the individual who executes the paper will, conventionally, request Apostille (for example, an official of authority or a notary). Apostille does not differentiate or render eligibility conditions between persons or legal entities for someone who wants them and does not require an explanation of why they were requested. Apostille may be given upon application of an individual agent or a delegate who wishes to use Apostille, proving that the person intending to use the Apostille is allowed to submit his request. Third-party trading companies in certain countries provide facilities for citizens to receive apostilles and similar documents (for example, notary authentication). The convention does not approve or prohibit activities permissible where allowed by and implemented in compliance with the applicable legislation, given that Apostille is only issued following the pattern by the competent authorities.
Apostille guarantees the authenticity of documents by checking by the competent authorities on several subjects: the authenticity of the documents it produces signatures, the assurances of the individual's capacity to sign a form, and the identity of the document's seal or stamp. The Apostille Convention, however, does not check if all public records are content or authentic. The competent authority is not obliged to check the quality of documents relating to a certificate based on Article 1(2)(d) of the convention. Conventionally, the implementation of Apostille for notary deeds to remain authenticated as an authentic deed, the Competent Authority to issue Apostille certification, one of which is the notary. After a waiting period of 6 (six) months since the accession instrument was submitted to the HCCH and no member party objected, the government needs to formulate a regulation on the competent authority which determines the notary as one of the parties authorised to issue Apostille certificates and keep them in the register. . The regulation of notary authority as the authority that is authorised to issue apostille certificates is the most appropriate solution to maintain the authenticity of notary deeds as authentic deeds because they are coherent with the elements of original acts as regulated in Article 1868 of the Civil Code, Article 256 RBg and UUJN, which are made based on law, by officials and in the jurisdiction of the deed it is made. Thus, the degree of authenticity of notary deeds applying Apostille still has a perfect degree of evidence.
Regulatory arrangements regarding the authority authorised to issue Apostille must also impose sanctions on the appointed official for wrongly executing public documents (Example: A notary who gives a certificate of a notary who does not comply with legal requirements). Therefore, if the competent authority is not a notary, it can ask the author of the document to determine whether the document was falsified or changed. In the era of globalisation, every country, including Indonesia, is expected to be at least able to accommodate the demands and pressures of globalisation through the reconstruction of adequate legal arrangements to provide a clear roadmap to achieve a prosperous economy. The success of a nation's economy can be seen from its success in formulating and enforcing adequate laws, both for national and international interests. Based on this urge, the existence of law is demanded to be efficient, its enforcement is practical, progressive, relevant, and the actual is no longer aggressive, rigid, complex, etc., so that it is difficult to understand both from its existence function, and purpose. There is a need and insistence on a legal model like this, so the law should become a tool to increase economic efficiency (Sugianto, 2013).
As the rule of law, Indonesia is essential that the law at a certain point belongs to the community to maximise the broadest possible social utility. The ability of the law to provide Justice by maximising the most comprehensive potential social utility (maximise overall social utility) like this, according to Posner, is time to become an economic standard. This conception is known as the economic conception of Justice. The term the economic conception of Justice and economic Justice, although in essence has slightly different definitions, both have the same goal, namely to improve the standard of human life. From a financial point of view, the national interest for Indonesia in this regard is related to national economic growth and its stability through regulation and legal regulations.
Meanwhile, international interests are linked to the ability of the state to accommodate and compete in the era of economic globalisation and free trade, as has happened today in the world economy. The meaning of globalisation needs to be understood here as the rapid increase in business worldwide to make exchange interactions more open, integrated and borderless. First, globalisation, in general, must be acceptable. Like it or not, whether we are ready or not ready, accept it or not, the development of globalisation cannot be avoided, so that globalisation has changed the world economic system, which creates opportunities and challenges. Thus, it is clear that all the elements of each country are (or are incentivised to be) active.
Second, globalisation has had a significant impact on the world economy with various consequences. It even affects almost everything that exists, for example, the production of goods and services, jobs, labour and production processes, and the effect on investment. The various impacts and consequences of globalisation are broadly similar, namely the urge for efficiency, productivity and competitiveness. Third, globalisation has also led to increased competition globally. This is often said to be the age of competence that emphasises the importance of law's role in each country's economy because the country's legal system and national laws are categorised as one of the essential national products. Apart from demonstrating its competitiveness, federal law must ensure a conducive investment climate in a healthy economic environment. At this point, Law and Economics see the law in its context as legal regulation to be an essential tool for achieving the nation's financial success.
These demands and insistences have made economics a part of social science that is useful for law, especially in understanding human nature as a legal subject and humans as potential state capital (human capital). Concerning a country, economics provides a convincing road map to achieve the nation's economic success. Entering the era of globalisation, the law often faces challenges to adapt. This kind of desire came from economists, but thinkers and legal practitioners began to yearn for the supremacy of efficiency, so they began to follow the economist's way of thinking, for example, in explaining the efficiency and progress of the law. Many legal experts (including law users) long for the existence of law-which should ideally be an efficient, effective, and progressive development. Law and pure law science are essentially ignorant of these concepts as broadly as economics. Therefore, if one starts to consider efficiency, effectiveness, and so on, it is time to see what economics can explain.
Especially Indonesia as a country located in ASEAN, in the context of realising the ASEAN Economic Community in 2015 as mandated in the provisions of the Cebu Declaration, all ASEAN member countries must liberalise in the fields of trade in goods, services, investment, free skilled labour and free flow of capital. More freely in the Southeast Asia region (Penasthika, 2017). The biological child of globalisation is the development of internet-based electronics. Globalisation and electronics have influenced many countries to transform government management based on electronic services or socalled e-government. In Indonesia, electronic-based services have been regulated in the Presidential Regulation of the Republic of Indonesia Number 97 of 2014 concerning the Implementation of One Stop Services in conjunction with the Regulation of the Minister of Home Affairs of the Republic of Indonesia Number 138 of 2017 concerning the Implementation of Regional One-Stop Services and has been implemented in almost all institutions both ministries and institution. The purpose of electronic services (PSE) is to increase economic growth through investment, improve the quality of licensing and nonlicensing services to the public, and improve the quality of one-stop integrated service delivery.
There are different paradigms in understanding meaning and see how to determine authenticity. From a technical perspective, authenticity is seen more in a process that pays attention to its material aspects because it considers how to authenticate both identities, documents or devices. Meanwhile, from a legal perspective, the meaning of authenticity is more seen in the object, namely the existence of written evidence which is legally assumed to have perfect evidentiary value because its formality has been guaranteed, made by the competent authority (an official under oath) so that the material/substance is guaranteed. However, it is interesting to note that technically, if a document has gone through the authentication process and is accepted as authentic, it is automatically used or runs to the next cycle without stopping. Meanwhile, in procedural law, an original deed, even though it has perfect evidentiary power, in its implementation, there are still possible conditions that make it unable to be used correctly (Edmon Makarim, 2015).
Apostille can be published in addition to paper and electronic form (e-Apostille). With the assumption that each electronic copy is considered a public document when issued by the competent authority. Storage completes the Apostle process shown in the following diagram:

Figure 4. The Apostille Convention
In the electronic era, e-register is the best solution to provide the best service to everyone. Via the internet, electronic registers (e-registers) can be accessed online, allowing anyone to quickly verify the origin of the Apostille they have received (regardless of whether the Apostille has been published in paper or electronic form). E-registers can also help prevent rejection in minor cases of the formality of procedures and can be quickly or easily verified without intervention from the competent authorities.
In implementing Apostille electronically, the notary deed to ensure the quality of its authenticity can be pursued in 2 (two) ways, namely: first, the Notary Deed is made conventionally which is attached to the Apostille certificate then scanned with the information that the copy is a copy of the deed made conventionally, and minutes are stored in the repertorium register of each notary. Things like this can be applied to issuing Electronic Mortgage Certificate by the Land Office.
Limited information and electronic documents that cannot be equated with written letters as authentic documents are formulated in Article 5 paragraph (2) of the ITE Law that Electronic Information and/or Electronic Documents and/or their printouts as referred to in paragraph (1) are an extension of the tools. Valid evidence by the applicable procedural law in Indonesia. In addition, Article 1867 of the Civil Code and Article 164 of the Civil Procedure Code (Herziene Indonesisch Reglement / HIR) states that notary deeds are recognised by law as authentic deeds, rather than electronic information be legally questionable. Therefore, obstacles and problems with the authenticity of electronic documents must be re-conceptualised regarding the original deed as an ius constituendum in civil law in Indonesia.
Moving on from the hypothesis that electronic information and documents originated from an electronic system that works properly and are accountable, then a piece of electronic information and documents that can be trusted is because an electronic system is also trustworthy. From an electronic system that has guaranteed reliability, the authenticity of electronic records is guaranteed to be materially reliable, and formally the authenticity of electronic documents is guaranteed to be reliable, safe, and operated responsibly. On the other hand, if the electronic information and documents come from an electronic system working poorly, electronic documents and information are not yet worthy of trust because the electronic system is not sound in operation. This hypothesis leads to an understanding that there is a range or spectrum in determining the weighted value of the proving power of electronic information, from the weakest to the strongest.
Authentic deeds are accepted because they are made with sincerity by public officials who have skills and qualifications. An original act can be done electronically if established and kept under the conditions stipulated by a decree in a State Institution. When made by or in front of a notary, it is exempt from the handwriting requirement required by law.
By considering the doctrine of Prof. Smith regarding computer security and also the rules of secure communication (secured communication), which includes confidentiality, integrity, authenticity, authorisation, non-repudiation, and availability (CIAAANA), so it can be seen that there is a range of values or a spectrum in determining the weight of the value of the power of evidence. From an Electronic Information (IE) and/or Electronic Document, which will greatly depend on the extent to which the security system can both in the information system and the electronic communication system itself.
At the lowest level, the existence of IE objectively is not guaranteed its validity in explaining the presence of a legal incident recorded by it and is unable to explain or ascertain who the legal subject is responsible for it. However, because an EI cannot be denied its existence just because of its electronic form, with these characteristics, there will be more free space for judges to conduct a "functional equality" examination whether it will be equated as written, original, and signed evidence.
While in the middle level, the existence of IE can be one of the fulfilment of the five elements in secured communication; however, there is still a clear indication of those concerned. Objectively, IE is guaranteed its validity or can explain who the Legal Subject is responsible for it. However, the accountability or reliability of the Electronic System used is not guaranteed to run correctly (not accredited), so that by itself, it can quickly be rejected by the person concerned. Whereas at the most substantial level (high level), the existence of IE is objectively guaranteed its validity and can explain who the legal subject is responsible, and the electronic system is guaranteed to run well (accredited), so as long as the parties cannot prove otherwise, then what declared by the system can be considered technically and legally valid. In such a context, the substance of an EI has been well preserved and should materially be equated with an authentic deed.
In electronic information and documents, the use of Electronic Signatures as a form of using an electronic authentication method is a necessity and a necessity to obtain highlevel evidentiary power values. In practice, a TTE also requires an Electronic Certificate that supports its existence, which basically will be related to the rule of law without denying it, namely if it is only carried out by both parties who communicate without involving a trusted third party (Trusted Third Parties, in the future abbreviated with T3P), then there is still an opportunity for one of the parties to denounce it at a later date. Therefore, to ensure that it cannot be denied, the role of a third party is needed.
The Indonesian government, since 2012, has issued regulations on the implementation of electronic systems and transactions, and this has been revised in 2019 through Government Regulation of the Republic of Indonesia Number 71 of 2019 concerning the Implementation of Electronic Systems and Transactions. Article 42 PP No. 71/2019 regulates that Electronic Transactions must use an Electronic Certificate issued by the Indonesian Electronic Certification Operator (PSrE). Electronic Transactions can use a Reliability Certificate issued by a registered Reliability Certification Agency with due regard to aspects of security, reliability and efficiency.
The PSrE is divided into 2 (two), namely the parent PSrE and the parent PSrE. Parent PSrE is an electronic certificate operator / Certification Authority (CA) run by the Indonesian government under the Directorate of Information Security, Ministry of Communication and Information Technology of Indonesia, which issues Electronic Certificates for Parent Electronic Certification Operators, meanwhile, parent PSrE is an electronic certificate operator / Certification Authority (CA ) which has been recognised by the parent PSrE to run digital certificate services carried out by both Indonesian and foreign nationals, organisations and Electronic Certificate administering business entities that are domiciled in Indonesia or have foreign capital ownership. Ensure that the parent PSrE has given official authority to the parent PSrE to carry out its functions and duties as an Electronic Certificate Operator. As of November 2019, two PSrE partners from government agencies, namely the Agency for the Assessment and Application of Technology (BPPT) and the National Cyber and Crypto Agency (BSSN). As well as four PSrE partners from the private sector, namely Privy.id, Peruri, Digisign, and Vida. The six services owned by PSrE are electronic signature (TTE), electronic seal (e-seal), preservation in TTE and electronic stamps, time markers, registered electronic delivery, and website authentication.
It is believed that the T3P paradigm can be carried out by the Electronic Certificate Service Provider (PSrE), which provides a means of authenticity tracing to the communicating parties and the T3P party who is deemed worthy of carrying out the mandate is a Notary. The role and involvement of the notary as the organiser of electronic certification or sub-operator seems to have become a necessity and necessity for electronic transactions. The best practice standards are in the public interest. As the only staterecognised notary organisation, the Indonesian Notary Association (INI) needs to establish a particular field that deals with information and electronic documents, such as the Chamber of Notaries or the Federation of Notaries legally based in Germany. The most substantial role of T3P is if they include the function and part of a notary in it, at least as an examiner and legalising someone's identification in the registration process and obtaining a certificate (RA) in it. This process will ensure that the party applying for the certificate is the correct person and will ensure that the applicant receives it in person. Meanwhile, the most influential role of a notary's function in supporting an Electronic Transaction is if they can act as RA and have the authority to do a deed electronically.

IV. Conclusion
Based on the analysis and discussion above, this article concludes that Apostille can be implemented for notary deeds while maintaining authenticity as an authentic deed with perfect evidentiary quality. With the adoption and adoption of the Apostille method in Indonesia, the chain of formalities for the issuance of notary deeds needs to be redesigned and adjusted to the provisions of the apostille convention with a new approach and method in transforming the procedure for issuing notary deeds that are better and following the needs in the era of globalisation and electronics.
To be able to apply Apostille in a notary deed so that the authenticity of the act is still fulfilled, it is necessary to distinguish between conventional and electronic application by taking into account the essential elements of Apostille, which include, among others, the Apostille Process, the Apostille Effect, and the competent authority. The Apostille process is taken in several stages, namely Request-Verification-Issuance-Recording.