notary on condition that Mr. Hendrix submit proof to the CANG of having acquired
Guatemalan citizenship.
49.
In this connection, the IACHR considers it important to point out
that, in Guatemalan law, the amparo action is a broad action to protect rights that
are thought to have been injured. Thus "there is no area in which amparo may not
apply, and it shall be in order wherever the acts, decisions, provisions, or laws of the
government implicitly threaten, restrict, or infringe rights guaranteed by the
Constitution and the laws." The law considers an action for amparo to be an action
for the protection of constitutional guarantees, as it may be brought by an individual
"in order to maintain or restore his or her enjoyment of the rights and guarantees
established in the Constitution or in any other law." 4
50.
In this connection, the Commission notes that the alleged victim in
the amparo action took judicial action with regard to his belief that the CANG's refusal
to authorize him to exercise the profession of notary was a violation of his right to
equal treatment and pursued his claim to the right to exercise this profession while
maintaining his citizenship in the local courts. Thus, the matter at issue in the petition
under its consideration has been brought before the national courts, and one of these
remedies might have proved appropriate and effective for resolving this type of
situation at the domestic level. However, although the alleged victim was granted
amparo, his claim to the right to exercise the profession of notary while maintaining
his citizenship was not accepted, in view of the terms of the Court of Constitutionality
judgment.
51.
The Commission considers that, in this case, the domestic remedies
have been exhausted pursuant to the requirements set forth in Article 46(1)(a) of
the American Convention.
2.
Filing period for the petition
52.
Article 46(1)(b) of the Convention provides that, to be admissible,
a petition must be filed within a period of six months from the date on which the filing
party was notified of the final national judgment.
53.
With regard to the instant petition, the IACHR has established that
the domestic remedies were exhausted with the April 21, 2004 judgment of the Court
of Constitutionality. According to the record accompanying the application to the
IACHR, notification of this judgment was given on June 14, 2004, and the petition
was filed with the IACHR on November 5, 2004. The Commission therefore concludes
that this requirement has been met.
3.
Duplication of proceedings and international res judicata
54.
The Commission understands that the subject of the petition is not
pending in another international venue and that it is not essentially the same as one
previously studied by the Commission or by another international organization.
Therefore, the requirements of Articles 46(1)(c) and 47(d) of the Convention have
also been met.
4.
Characterization of the alleged facts
55.
As the Commission has indicated before in other cases, it is not
appropriate at this stage to determine whether or not there has been violation of the
American Convention. For the purposes of admissibility, the IACHR need only decide
4 Amparo, Habeas Corpus, and Constitutionality Act, Decree 1-86, Articles 8 and 10.