DISSENTING OPINION OF JUDGE RODRIGO MUDROVITSCH
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF HENDRIX V. GUATEMALA
JUDGMENT OF MARCH 7, 2023
(Merits)
I.
Introduction
1.
The case of Hendrix v. Guatemala discusses the international responsibility of the
State for potential human rights violations in the context of the impediment to the exercise
of professional activities based on nationality. The alleged victim, Mr. Hendrix, a United
States citizen, was prevented from registering as a notary before the Guatemalan Lawyers
and Notaries Professional Association (“CANG”) because he was not Guatemalan by birth
or by naturalization. After he had filed administrative and judicial remedies, the
Guatemalan Constitutional Court conditioned his exercise of the profession to the
acquisition of Guatemalan nationality.
2.
The Inter-American Court of Human Rights (“the Inter-American Court” or “the
Court”) indicated that non-compliance with the condition of “domicile” established in article
2(1) of the Guatemalan Notarial Code was sufficient justification for the alleged victim to
be unable to register as a notary in Guatemala. 1 Consequently, the Court also rejected the
alleged violation of Articles 24, 25 and 26 of the American Convention on Human Rights
(“the Convention”). 2
3.
With the greatest respect for the majority position of the Inter-American Court, I
consider that, in the instant case, it was necessary to reaffirm the inter-American
standards in relation to the principle of equality and non-discrimination (Article 24 of the
Convention) and examine in detail the elements of the proportionality test in relation to
the measure that restricted rights in cases of impediments to the exercise of a profession
based on nationality. In addition, I understand that the professional restriction was not
properly examined by the competent administrative and judicial organs, depriving Mr.
Hendrix of access to judicial review (Article 25 of the Convention) and of the right to work,
because he was prevented from exercising the notarial profession (Article 26 of the
Convention).
4.
Consequently, this dissenting opinion is organized in four parts: (II) description of
the factual context that gave rise to the violations; (III) establishment of the criterion
applied to Mr. Hendrix by the Guatemala courts (nationality), and analysis of the violation
of the right to equality and non-discrimination by the adoption of the nationality
requirement for the exercise of the notarial profession, including the application of the
proportionality test to the differentiated treatment of nationals and non-nationals involving
an impediment to the exercise of a profession in Guatemala; (IV) violation of the rights to
due process and judicial protection, and (V) violation of the right to work.
II.
The case before the Court
5.
The alleged victim in this case, Mr. Hendrix, is a United States citizen, with a juris
doctorate degree from the University of Wisconsin-Madison in the United States of
America, a degree of juris doctor and lawyer from the Universidad Mayor de San Andrés
Cf. Case of Hendrix v. Guatemala. Merits. Judgment of March 7, 2023. Series C No. 485, paras. 70 and 71.
Hereinafter “judgment”.
1
2
Cf. Judgment, paras. 78 and 79.