81 of the Constitution, 12 which refers to rights acquired as a result of university degrees.
In response, the Guatemalan Constitutional Court confirmed the denial of the registration
and, based on article 146 de la Constitution, which equates Guatemalans by birth to
naturalized Guatemalans, 13 asserted that the registration of Mr. Hendrix as a notary was
conditional on his naturalization.
10.
To date, Mr. Hendrix has been unable to register as a notary, and has not taken
the necessary steps to acquire Guatemalan nationality. 14
III.
Violation of the right to equality and non-discrimination owing to the
inability to register as a notary due to nationality
11.
The majority position adopted by the Inter-American Court was that the State of
Guatemala did not violate the rights of Mr. Hendrix because he was not a permanent
resident of that country. This circumstance violated the requirement of domicile, which
includes the aforementioned rootedness in the country, placing him in a particular situation
that did not permit equating him to other persons who exercise notarial functions in
Guatemala. 15 In this way, the Court ruled out the analysis of the requirement of
“nationality,” since Mr. Hendrix did not meet the requirement of “domicile” in order to
register as a notary.
12.
The failure to address the “nationality” requirement when examining whether there
had been discrimination in this specific case leads me to disagree with the majority
position. I understand that, from the moment the exercise of a profession is conditioned
on renouncing the nationality of origin and acquiring a new nationality, a situation that is
incompatible with the Convention is created.
13.
Consequently, in this section (III.a), I will examine the Court’s approach to the
requirement of “domicile” and establish the standard that was applied to Mr. Hendrix from
the time this case was submitted, which is that of nationality. In continuation (III.b), I will
analyze the violation of Mr. Hendrix’s right to equality and non-discrimination, presenting
(III.b.i) the conceptual framework that the Inter-American Court attributes to this
guarantee in relation to the distinctions between national and non-nationals, to then
(III.b.ii) evaluate whether the restriction applied by the State was compatible with the
Convention based on the proportionality test usually applied by this Court.
(a)
The requirement applied to Mr. Hendrix: discrimination based on
nationality
14.
In order to reject the argument of discriminatory treatment by the State, the
majority position of the Court based itself on the premise that the petitioner did not comply
with the requirement of rootedness in Guatemala, because he was not domiciled in the
country. I consider that this position does not adequately reflect the facts of the case,
because the criterion used by the Guatemalan jurisdiction to reject Mr. Hendrix’s claim
was the lack of nationality and not of domicile. In my opinion, the divergence from the
parameters adopted by the domestic judicial authorities resulted in unacceptable
distortions in the analysis of the facts as I will demonstrate below.
15.
The judgment addresses the difference in treatment based on criteria that are
neither objective nor reasonable, analyzing whether the petitioner was in an analogous
12
Cf. Constitution of Guatemala. Article 81. Degrees and diplomas. Degrees and diplomas issued by the State
have full legal value. The rights acquired for the exercise of the professions accredited by the said degrees must
be respected and no provisions of any kind may be issued that limit or restrict them.
13
Cf. Constitution of Guatemala. Article 146. Naturalization. Those who obtain their naturalization pursuant
to the law are Guatemalans. Naturalized Guatemalans have the same rights as Guatemalans by birth, subject to
the limitations established in this Constitution.
14
Cf. Judgment, para. 25.
15
Cf. Judgment, paras. 75 and 76.
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