101. In addition, the constitutional dispute examined by the Guatemalan Constitutional
Court was, on the one hand, between the right acquired by a title (article 81 of the
Guatemalan Constitution), which includes a university degree and, on the other hand, with
regard to the nationality requirement for professional registration as a notary in Guatemala
(article 2(1) of the Notarial Code).147 Therefore, the court decided to condition his
registration as a notary to the acquisition of Guatemalan nationality.
In the opinion of this court, the conflict that arose can be resolved by applying the provisions of
article 146 of the Constitution of the Republic which stipulates: “Those who obtain their naturalization
pursuant to the law are Guatemalan,” and “Naturalized Guatemalans have the same rights as
Guatemalan nationals, subject to the limitations established in this Constitution,” which does not
include any related to the exercise of the notarial profession.148
102. To determine whether or not there was a violation of Article 25 of the Convention,
it is necessary to verify whether the remedies met the requirements of suitability and
effectiveness.149 These requirements are met when the competent authority examines the
reasons cited by the plaintiff, rules expressly on them, and monitors compliance with its
decisions. Therefore, the duty to substantiate the decisions is an obligation of means or
conduct, without an obligation to decide in favor of the alleged victim.150 Therefore, I will
examine whether the judicial decisions conducted a sufficient judicial review151 as
regards a complete analysis of all the elements involved in Mr. Hendrix’s case.
103. In the previously mentioned case of Cuscul Pivaral et al. v. Guatemala (2018), the
representatives in the domestic proceedings filed an application for amparo asking the
Guatemalan Constitutional Court to recognize the State obligation to acquire and distribute
medicines to persons with HIV. However, after a conciliation agreement on October 30,
2002, the Constitutional Court declared the application without grounds understanding
that the contested act had ceased. Nevertheless, the Inter-American Court noted that the
reason indicated by the domestic court was insufficient because it had not ruled on the
risk to the applicants’ rights to health and to life, and concluded that the analysis of the
judicial remedy should have examined the arguments submitted by the parties and ruled
on them expressly in light of the standards derived from the Convention.152
104. In light of these criteria, I note that the Guatemalan Constitutional Court should
have examined whether the measure was effective to guarantee the rights analyzed and
to permit Mr. Hendrix to exercise them, ruling on the central aspect underlying the filing
of the remedies; that is, the restriction of the right to equality and non-discrimination.
However, in the instant case, all the domestic decisions, both administrative and judicial,
merely cited and applied the legal provisions without providing the due statement of
reasons.153
105. Costa Rica, for example, had similar legislation to that of Guatemala and decided
to annul the nationality requirement to register as a notary considering that this was a
discriminatory and unconstitutional criterion.154 On another occasion, the same
147
Cf. Judgment of the Constitutional Court of April 21, 2004, pages 11-12.
148
Cf. Judgment of the Constitutional Court of April 21, 2004, page 12.
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of August 23, 2018. Series C No. 359, para. 175.
149
150
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of August 23, 2018. Series C No. 359, para. 176.
151
Cf. Case of the Dismissed Workers of PetroPeru et al. v. Peru. Preliminary objections, merits, reparations
and costs. Judgment of November 23, 2017. Series C No. 344, para. 178; Case of Barbani Duarte et al. v.
Uruguay. Merits, reparations and costs. Judgment of October 13, 2011. Series C No. 234, para. 204.
152
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment
of August 23, 2018. Series C No. 359, para. 177.
153
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment
of August 23, 2018. Series C No. 359, para. 187.
154
Cf. Constitutional Chamber, Costa Rica. Resolution No. 02093-1993.
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