emphasizing that the principle of equality and non-discrimination acquired special
importance for the protection of the rights of migrants.51
37.
In addition to the standards concerning discrimination based on nationality, the
Court has examined the principle of equality from the point of view of treatment based on
stereotyping. This perspective is pertinent in the instant case, insofar as the State’s
justification for impeding non-nationals from exercising the notarial profession in the
country is based on presumptions relating to the suitability (or alleged lack of suitability)
of immigrants to respond for fraudulent acts in cases relating to the application of legal
responsibility. Therefore, designation as a notary was conditioned to the acquisition of
Guatemalan nationality in order to incorporate non-nationals into Guatemalan society.
Consequently, the professional impediment for non-nationals is based on the occurrence
of two scenarios: the deficient performance of notarial functions, and the impossibility of
legal responsibilities being assumed outside Guatemalan territory. Thus, the State argued
that, if the said circumstances occurred, non-nationals would be more susceptible of
remaining unpunished owing to their lack of ties to Guatemala.
38.
In Hendrix v. Guatemala, it can be seen that the State replicates the feeling of
distrust in relation to the credibility of the acts to be conducted by the stereotyped person
– in this case, the non-national. As the Court indicated in Advisory Opinion OC-24/17,
possible differences of opinion in relation to certain social groups cannot be used to justify
discriminatory actions, especially when they reproduce structural and historical stigmas.52
In Gonzales Lluy et al. v. Ecuador (2015), the Court examined the restriction of the right
to education of the victim, Talia Gonzales Lluy, infected by the HIV virus during a blood
transfusion, in relation to the interests of the children who studied with her. At that time,
the Court concluded that the risk to her companions’ health was minimal and that the
decision to separate her from the school was based on subjective and stereotypical
arguments.53 The Court considered that the State had not proved that the measure was
necessary and the least harmful, and concluded that the restriction imposed was
disproportionate. Moreover, there was evidence that there were alternative biosafety
measures capable of preventing the transmission of diseases. From a comparative
perspective, mutatis mutandis, the instant case relates to the nationality requirement to
guarantee the suitability of notaries. The content of the right to equality and nondiscrimination does not allow the incorporation into domestic law of speculations,
presumptions, stereotypes or generalized considerations as legitimate justifications for
specific restrictions of rights.54
39.
Recapitulation of the Court’s precedents concerning discriminatory treatment based
on nationality reveal inter-American case law’s strong commitment to according the
greatest scope possible to the principle of equality and non-discrimination. In addition, it
proclaims the obligation of States to eliminate any provision that establishes restrictions
of rights between nationals and non-nationals that are not reasonable and based on
objective criteria.
40.
Consequently, it is necessary to evaluate whether the restriction of Mr. Hendrix’s
rights owing to his condition of non-national is compatible with the Court’s traditional case
Cf. Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, September 17,
2003. Series A No. 18. Separate opinion of Judge Antônio Augusto Cançado Trindade, para. 33.
51
Cf. Mutatis mutandis, Gender Identity, and Equality and Non-Discrimination with regard to Same-Sex Couples.
State Obligations in relation to Change of Name, Gender Identity, and Rights deriving from a relationship between
Same-Sex Couples (Interpretation and scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article
1, of the American Convention on Human Rights). Advisory Opinion OC-24/17 of November 24, 2017. Series A
No. 24, para. 83.
52
53
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment
of September 1, 2015. Series C No. 298, para. 274.
Cf. Mutatis mutandis, Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations
and costs. Judgment of September 1, 2015. Series C No. 298, para. 258.
54
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