Authentic Acts in Croatia

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General
Succession
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General

1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union regulations?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(I) relates to the signature and the content of the authentic instrument; and
(II) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]

Yes.

If so, what are they? Are these only notarial acts or also acts of other authorities?

This definition describes notarial acts and authenticated private instruments (private documents drafted by the parties according to a set of highly formal rules, examined and approved by the notary, rendering the same legal effects as notarial acts) under Croatian Law.

Certain other documents could fall within the scope of the definition as well, when prescribed so by the law – e.g. judicial protocols and protocols made by non judicial authorities on certain declarations.

Public wills can serve as an example of non notarial authentic instruments: Art. 32-33 and 146-150 of the Croatian Inheritance Act (https://www.zakon.hr) prescribe that public wills can be drafted by Municipal courts (judges or judicial counsels), civil law notaries and (for Croatian nationals abroad) diplomatic-consular representatives, all in line with the definition provided by the Successions Regulation.

Authentic instruments issued by authorities other than the civil law notary are an exception and exist only if prescribed.

2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?

Documents that are issued or drafted as authentic instruments entail a presumption of veracity of the facts indicated in them. They can be disputed in a civil proceeding. Art. 2 and 3 of the Croatian Notarial Act stipulate issuing notarial instruments (notarial acts, notarial certificates and notarial protocols) as public documents (authentic instruments in this sense) as a general competence of civil law notaries. Art. 230 of the Croatian Civil Litigation Act prescribes that public documents are documents issued by a public authority within its field of competence, proving presumed veracity of facts that are indicated in the document. It is permitted to contest them by proving the indicated facts were poorly established, or that the document was poorly drafted. Private documents entail the same presumption arising from the general principle of burden of proof actori incubit probatio. However, facts proven by private documents are assessed under Art. 8 of the Croatian Civil Litigation Act (The court shall establish the relevant facts based on its own conviction formed by a diligent assessment of each fact individually and all facts together), enabling easier contesting than in the case of public documents, where contesting has to be more specific.

3. Do all authentic instruments have the same enhanced probative value?

Yes, the law does not distinguish authentic instruments in the sense of higher or lower probative value. Authentic instruments can contain an execution clause (clausula exequendi) rendering them writs of execution or not. This is possible only with documents that contain provisions that can be subject to enforcement, like agreements. Declarations like e.g. Declaration of accepting appointment to a company’s executive board also have to be given in the form of an authentic instrument, but their nature does not allow for stipulating an enforcement clause in them.

4. Enhanced probative value concerns:

The date on which the authentic instrument was drawn up
The place where the authentic instrument was drawn up
The signature by the parties of the authentic instrument
The parties’ declarations
Any observation made by the authority within the limits of its competence
The measures the authority declares to have taken
Appearance, identification and consent of the parties

Authentic instruments assembled by notaries have to contain all of the abovementioned information because failing to mention any one of them would render the document invalid as notarial acts (authentic instrument in this sense). The notary also has to establish if the declaration is given in a certain capacity (e.g. legal representative of a company) and how this capacity was determined. As mentioned Ad 2), it can also contain an enforcement clause.

5. Enhanced probative value can be contested:

Before which authority: The court. Depending on the nature of the case, the competent court can be a municipal court (general jurisdiction) or a commercial court (jurisdiction in commercial civil matters).

According to which procedure (state the applicable rules): Civil litigation seeking to declare the authentic instrument partially or totally invalid. Art. 230 of the Croatian Civil Litigation Act prescribes that public documents are documents issued by a public authority within its field of competence, proving presumed veracity of facts that are indicated in the document. It is permitted to contest them by proving the indicated facts were poorly established, or that the document was poorly drafted.

Within what timeframe: The enhanced probative properties exist until established otherwise by the Court.

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Succession

1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?

Civil law notaries acting as court commissioners or Municipal Courts acting in their original capacity are competent.

2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?

The Certificate of inheritance (or Decision on Inheritance) is the typical ordinary act that settles the succession case. It resembles a judicial decision in a non contentious matter, establishing who the heirs are, what the succession consists of, which heir gets how much of each element of the succession and ordering third parties (land registers, banks, etc.) to act upon receiving an authentic copy of the certificate of succession. Under ordinary circumstances, it is issued by the notary who conducted the succession proceeding, acting as a court commissioner. If the heirs are in a dispute from the beginning on, or if the notary’s decisions is subject to objection, the court settles the succession in the form of a litigation proceeding. Another typical notarial competence would be to draft a public will. This is done in the form of a notarial protocol. Declaration on acceptance or waiving the inheritance is given orally at a hearing (in which case it is indicted in a signed protocol from the hearing), or sent in written form as a private document with a certification of signature.

3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy

See section General, question 2.

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Family

1. What types of family law instruments exist?

Croatian civil law notaries do not have relevant competences in the field of family law. Agreements defining the distribution of assets between the spouses are valid with a mere certification of signature. Relevant authentic instruments would be excerpts from the state registers proving the existence of a marriage or registered partnership; judicial decisions on divorce, division of property of the spouses/partners, maintenance and parental care of minors. Apart from the excerpts, which are issued in an administrative proceeding, all other instruments are judicial instruments.

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Authentic Acts in Croatia

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