41. The Commission considered that there were no substantive grounds to presume that foreigners, as a class, were not capable of exercising the attestation authority delegated to notaries under Guatemalan law, or that this would be detrimental to national sovereignty, to the principle of accountability, to “arraigo” [Note: having roots in or an attachment to the country], or to the independence required to conduct their professional functions. It also indicated that what would appear to jeopardize the objective sought was the lack of rootedness or domicile in Guatemala. However, it indicated that, to achieve the said objective, it would be sufficient to require proof of roots, attachment or domicile in Guatemala, together with professional qualifications, and to ensure state oversight of performance. Thus, the restriction would not be necessary. 42. Regarding the requirement of suitability, it indicated that the State had not justified that the restriction established against foreign nationals would contribute to safeguarding national sovereignty. It added that, even supposing that the restriction sought to guarantee professionals who were technically proficient and trustworthy for the exercise of this public function, the alleged victim had passed all the examinations required to obtain the title of lawyer and notary, demonstrating his technical and professional capability to perform such work on an equal footing with Guatemalan nationals. It argued that, under an accountability system or regular evaluations, the State would be able to supervise the correct performance and the trustworthiness of those who exercise notarial functions, even if they are foreign nationals. 43. According to the Commission, pursuant to international and comparative case law regarding the functions of notaries, it could be observed that: (i) they do not operate as public officials or servants in the traditional sense; (ii) they do not perform functions that “go to the heart of representative government”; (iii) they do not play any role in formulating or executing public policies, and (iv) they do not have coercive or sanctioning authority. It added that various national and international courts48 that have analyzed the prohibition of non-nationals from exercising the notarial profession under Latin notarial systems have concluded that such limitations constitute discrimination based on nationality or unreasonable restrictions of the right to work. 44. Based on the above, the Commission concluded that the provisions established in article 2(1) of the Guatemalan Notarial Code and the consequent impediment for the victim to register as a notary in Guatemala were arbitrary and, therefore, violated the principle of equality and non-discrimination established in Article 24 of the American Convention, in relation to the obligations established in Articles 1(1) and 2 of this instrument. The Commission clarified that the foregoing was independent of the regulations and requirements that must be met for a foreigner to be able to reside in the country and exercise a profession. 45. The representatives argued that the ban on Mr. Hendrix to exercise the notarial profession in Guatemala based on his nationality – even though he met all the formal requirements – was arbitrary. They indicated that, pursuant to the standards established by the Court for differentiating between distinction and discrimination, it did not constitute a distinction, but rather discriminatory treatment based on unequal protection under domestic law. In this regard, the State had incurred in discriminating acts de jure – by upholding legal provisions that restricted the rights of the individual based on his or her nationality – and de facto – by implementing administrative and judicial decisions that reinforced the application of the said legal provisions, decisions that did not involve a 48 It indicated that, in Costa Rica in 1993, the Constitutional Chamber of the Supreme Court declared that the provision of the Organic Law of the Notarial Function then in force that established the requirement of being Costa Rican by birth or naturalization to exercise the notary function was unconstitutional. Cf. Constitutional Chamber of the Supreme Court of Justice of the Republic of Costa Rica, Resolution No. 02093-1993 of May 19, 1993. See also: Court of Justice of the European Union in matters: C-50/08; C-47/08, C-51/08; C-53/08; C54/08, and C-61/08 of May 24, 2011, and the Supreme Court of the United States [of America], Bernal v. Fainter, No. 83-630, of March 28, 1984. 13