Consequently, there is an indissoluble link between the obligation to respect and to ensure
human rights and the principle of equality and non-discrimination.85
64.
In addition, Article 24 of the American Convention prohibits discrimination de jure,
not only in relation to the rights contained in the Convention but also with regard to all the
laws enacted by the State and their application.86 In addition, the Court has indicated that
Article 24 of the Convention gives rise to a mandate aimed at guaranteeing material
equality.87
65.
Thus, the right to equality and non-discrimination encompasses two concepts: one
related to the prohibition of arbitrary differences in treatment, and the other to the State
obligation to create conditions of real equality for groups that have historically been
excluded or that are at greater risk of discrimination.88 Furthermore, the Court has
determined that a difference in treatment is discriminatory when it does not have a
reasonable and objective justification;89 in other words, when it does not pursue a
legitimate purpose and when the relationship between the means used and the end
pursued is disproportionate.90 The Court has also established that, in the case of the
prohibition of discrimination based on one of the protected categories established in Article
1(1) of the Convention, the possible restriction of a right requires rigorous substantiation,
which means that the reasons that the State uses to differentiate treatment must be
particularly weighty and be supported by comprehensive arguments.91
B.3. Analysis of the specific case
66.
In the instant case, both the Commission and the representatives have indicated
that Mr. Hendrix was subjected to discriminatory treatment in relation to the authorization
to exercise the profession of notary because he was not a Guatemalan national by birth or
by naturalization. To examine the presumed violation of the alleged victim’s right to
equality, they asked this Court to analyze the legality, legitimacy, suitability, necessity
and proportionality of the nationality requirement as a condition to exercise notarial
functions.
67.
That said, before making the analysis proposed by the Commission and by the
representatives, the Court finds it necessary to determine whether Mr. Hendrix was in a
similar situation to Guatemala nationals as regards the exercise of the notarial profession.
Indeed, the right to equality, at least as regards equality of treatment, is based on the
supposition that individuals in similar factual conditions cannot be the object of unjustified
Cf. Advisory Opinion OC-18/03, supra, para. 85; Advisory Opinion OC-27/21, supra, para. 154, and Case of
Guevara Díaz v. Costa Rica, supra, para. 47.
85
Cf. Case of Yatama v. Nicaragua. Preliminary objections, merits, reparations and costs. Judgment of June 23,
2005. Series C No. 127, para. 186; Case of Barbosa de Souza et al. v. Brazil. Preliminary objections, merits, reparations
and costs. Judgment of September 7, 2021. Series C No. 435, para. 139, and Advisory Opinion OC-27/21, supra,
para. 156.
86
87
Cf. Case of the Workers of the Fireworks Factory of Santo Antônio de Jesus v. Brazil. Preliminary objections,
merits, reparations and costs. Judgment of July 15, 2020. Series C No. 407, para. 199, and Advisory Opinion
OC-27/21, supra, para. 156.
Cf. Advisory Opinion OC-18/03, supra, para. 92; Advisory Opinion OC-27/21, supra, para. 158, and Case of
Guevara Díaz v. Costa Rica, supra, para. 49.
88
Cf. Juridical Status and Human Rights of the Child, Advisory Opinion OC-17/02, August 28, 2002. Series A
No. 17, para. 46, and Case of Guevara Díaz v. Costa Rica, supra, para. 49. The Court has indicated that not all
differences in legal treatment are discriminatory as such, because not all differences in treatment are, in
themselves, offensive to human dignity. Cf. Advisory Opinion OC-4/84, supra, para. 56.
89
Cf. Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile.
Merits, reparations and costs. Judgment of May 29, 2014. Series C No. 279, para. 200, and Case of Guevara Díaz
v. Costa Rica, supra, para. 49.
90
91
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment
of September 1, 2015. Series No. 298, para. 257, and Case of Guevara Díaz v. Costa Rica, supra, para. 49.
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