in Bolivia, and a degree in law and the notarial profession from the Universidad de San
Carlos de Guatemala (“USAC”). 3 At the time of the facts, he worked for the United States
government. The judgment noted that, 4 between 1997 and 2006, Mr. Hendrix entered
Guatemala 5 on several occasion, the last time being on April 16, 2006.
6.
Among other requisites for the exercise of the profession, article 2 of the
Guatemalan Notarial Code required the notary to be a lawyer registered with the relevant
professional association (the Guatemalan Lawyers and Notaries Professional Association)
and to be a Guatemalan national by birth or naturalization. According to the State, the
justification for the nationality requirement was the fact that “because the notary
possesses fe pública (the legal authority to attest documents, or attestation authority), he
exercises a function, acts on behalf of the State, is subject to oversight and legal
responsibility and, above all, provides legal certainty. This makes it necessary for the
notary to prove arraigo (rootedness in the country), and the way to prove this situation is
by nationality.” 6 According to expert witness Gabriel Orellana Rojas, rootedness is
composed of two elements: domicile and nationality. 7
7.
On November 22, 2000, Mr. Hendrix submitted a request to register as a lawyer
and notary before the CANG. However, the CANG Board only authorized his registration
as a lawyer and refused to register him as a notary based on the argument that the legal
provisions only permitted the registration of professional who were Guatemalan by birth. 8
On three occasions Mr. Hendrix attempted to obtain reconsideration of the decision, in one
administrative and two judicial instances, namely: the Assembly of Presidents of
Professional Associations of Guatemala, the Third Chamber of the Appellate Court, and the
Guatemalan Constitutional Court.
8.
First, Mr. Hendrix filed an appeal against the partial denial of his request by the
CANG. This appeal was rejected by the Assembly of Presidents of Professional Associations
of Guatemala on April 22, 2002. 9 In the judicial sphere, on May 9, 2002, he submitted an
application for amparo before the Third Chamber of the Appellate Court against the
decisions of the CANG and the Assembly of Presidents of Professional Associations of
Guatemala, which was also rejected. 10
9.
Lastly, Mr. Hendrix filed an appeal before the Guatemalan Constitutional Court,
arguing that he had acquired the right to exercise the profession of lawyer and notary by
obtaining the respective academic degrees from the School of Legal and Social Sciences
of the University de San Carlos de Guatemala. 11 The substantive issue that the
Constitutional Court was asked to examine was whether article 2(1) of the Notarial Code,
which prevented non-nationals from registering as notaries, was compatible with article
3
On September 19, 1997, Mr. Hendrix submitted a request for recognition of his juris doctorate degree
issued by the University of Wisconsin-Madison (USA) to the Universidad de San Carlos de Guatemala. On
November 17, 1997, the Board of the USAC School of Legal and Social Sciences admitted his request and awarded
Mr. Hendrix the title of Doctor in Legal and Social Sciences. Cf. Answering brief of June 14, 2021, paras. 11 and
12. Subsequently, on August 17, 1998, at the request of Mr. Hendrix, the Board of the USAC School of Legal and
Social Sciences admitted the alleged victim’s incorporation as a lawyer and notary. Cf. Answering brief of June
14, 2021, para. 14.
4
Cf. Judgment, para. 25.
5
Cf. Judgment, para. 25.
6
Cf. Answering brief of June 14, 2021, para. 114.
7
Cf. Expert opinion provided by Gabriel Rojas during the public hearing held on March 28, 2022.
Cf. Transcript of “Resolution 3-2001 of February 6, 2001, of the Guatemalan Lawyers and Notaries
Professional Association recorded in a note of January 16, 2002, of the Board’s Secretary.”
8
Cf. Resolution No. 1151-13-02-02 of April 22, 2002, issued by the Assembly of Presidents of Professional
Associations of Guatemala.
9
10
Cf. Judgment of the Third Chamber of the Appellate Court of June 25, 2002.
11
Cf. File No. 1006-2002, Guatemalan Constitutional Court.
2