Thus, in order to preserve the appellant’s vested right to exercise the notary profession, with the condition that
authorization of this exercise be dependent on the securing of Guatemalan citizenship as described in article 146 ibid,
the appellant is granted the amparo pursuant to the terms set forth in the resolution paragraphs of this judgment
(...)14.
C. Additional information
37. According to the case file, on February 17, 2010, at the request of the State of Guatemala, the secretary of
the governing board of the Guatemalan Institute on Notarial Law issued an opinion on the possibility of the
alleged victim exercising the notary profession in Guatemala. The opinion concluded as follows:
(...) In Guatemalan constitutional jurisprudence, there is no question that the principle of juridical equal protection is
not violated if different provisions are in place for different situations, as long as the differences are based on criteria
that is reasonable. In the case in question, and based on the extensive doctrine set forth, the requirement that
legislators place on the notarial professional is not only reasonable but easily understandable and grounded in
notarial principles. Most countries treat foreigners different than nationals. A foreigner needs work permits, a
national does not. Foreigners cannot vote or be elected, nor can they hold public offices. For example, in Guatemala,
juridical persons are prevented from engaging in certain commercial activities if they do not have Guatemalan
nationality.
(...) Based on this doctrine, it is therefore concluded that, in Guatemala, notaries are public officials, as they exercise
a jurisdictional authority delegated by the State of Guatemala. Therefore, Guatemalan notaries are public officials,
regardless of whether their income comes from the State or from private parties. The nationality requirement
established under Guatemalan law is not an arbitrary one. It comes from a long tradition of the Latin notary
profession. Although this profession is different in different countries, Mexico, Argentina, Spain, and others require
citizenship to exercise it. The Spanish Notary Profession Act clearly states that “Notaries are public officials,” and
requires that they “be Spanish in order to attest documents.” Thus, Guatemala’s requirement that notaries must be
Guatemalan to exercise the notary profession is not outside the context of the Latin notary system, and as set forth in
the doctrine cited, it is a requirement with solid historical and legal basis, and it is perfectly legitimate for the State
to establish requirements for the exercise of the notarial profession.15
38. On February 17, 2010, the secretary of the governing board of the Association of Lawyers and Notaries of
Guatemala notified the Guatemalan State of its resolution, as follows:
(...) The governing board resolves: to inform the Executive Deputy Director of COPREDEH that, as resolved in
paragraph 18 of resolution 18-2007, from the session held on April 25, 2007, in compliance with the judgment issued
on April 21, 2004, by the Constitutional Court and the resolution of April 16, 2007, by the Assembly of Presidents of
Professional Associations, before Attorney Edward Steven Hendrix can be sworn as a Notary, he must comply with
the provisions set forth in article 146 of the Political Constitution of the Republic of Guatemala. The governing board
hereby complies with the resolution issued by Guatemala’s high constitutional court.16
IV. CONSIDERATIONS OF LAW
A.
The principle of equal protection and nondiscrimination17
1. General considerations
Annex 5. Judgment of June 25, 2002, of the Third Chamber of the Court of Appeals, constituted as an amparo court. Annex to the initial
petition of November 5, 2004.
15 Annex 6. Opinion of the Guatemalan Institute of Notarial Law, May 3, 2010. Annex to the brief of the State of June 18, 2010.
16 Annex 7. Letter of February 17, 2010, to COPREDEH from the secretary of the governing board of the Association of Lawyers and
Notaries of Guatemala. Annex to the brief of the State of June 18, 2010.
17 Article 24 of the American Convention states that “All persons are equal before the law. Consequently, they are entitled, without
discrimination, to equal protection of the law.” Likewise, Article 1(1) of the American Convention establishes that: “The States Parties to
this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction
the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion,
political or other opinion, national or social origin, economic status, birth, or any other social condition.”
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