43.
Article 46(1)(a) of the American Convention provides that, for a
complaint lodged with the Inter-American Commission pursuant to Article 44 of said
treaty to be admissible, all remedies under domestic law must have been pursued
and exhausted in accordance with the generally recognized principles of international
law. The purpose of this requirement is to allow national authorities to be seized of
the alleged violation of a protected right and to have the opportunity to resolve it if
appropriate before it is considered at the international level.
44.
The petitioner states that he has exhausted the remedies under
domestic law. The State has not made any specific representations as to whether this
treaty requirement has been met. With respect to said treaty requirement, the IACHR
will proceed to analyze the information provided by the parties in order to determine
whether this requirement has been met.
45.
The information provided by the parties indicates that Steven
Hendrix filed an amparo action after obtaining an unfavorable ruling from the
Assembly of Presidents of the Professional Associations of Guatemala.
46.
The documentation accompanying the petition to the IACHR shows
that, on May 9, 2002, the petitioner filed an amparo action for the protection of
constitutional rights with the Third Division of the Court of Appeals, contesting the
CANG's decision to not authorize him to exercise the profession of notary in
Guatemala on the ground that he was not a Guatemalan citizen. This action also
challenged the decision by the Assembly of Presidents of the Professional Associations
of Guatemala to let stand the CANG's decision by denying his appeal of it. The appeals
court ruled against Mr. Hendrix, and he applied to the Court of Constitutionality.
47.
The Court of Constitutionality ruled on the appeal in its judgment of
April 21, 2005, of which the relevant portion is as follows:
(...) it considers that the fact that a professional degree has been validly
conferred on a person who, because of his nationality, in accordance with the
provisions of statutory law, would not be able to exercise the profession to
which this degree admits him gives rise to a constitutional conflict between
one constitutional norm (Article 81 of the Political Constitution of the Republic),
which provides that "the acquired rights of professional practice of holders of
said degrees (which include university degrees) must be respected, and no
provisions of any kind may be promulgated that limit or restrict them" and
another, contained in Article 2(1) of the Code of Notarial Practice, which states
that, to obtain authorization to exercise the profession of notary, it is necessary
to "be a native Guatemalan, of age, of secular status, and domiciled in the
Republic."
(…)
In the opinion of the Court, the aforementioned conflict may be resolved by
applying Article 146 of the Political Constitution of the Republic, which provides
that "naturalized Guatemalans shall have the same rights as native
Guatemalans, except for the limitations established in this Constitution," none
of which concern the exercise of the profession of notary.
48.
In view of the above, the Court decided (1) to vacate the judgment
for which the amparo action was brought; (2) to grant Steven Edward Hendrix
amparo, and, therefore, (a) to restore his affected legal rights; (b) to annul the
decision of the Assembly of Presidents of Professional Associations of Guatemala; and
(c) for the purposes of granting amparo, to order the Assembly of Presidents of
Professional Associations of Guatemala to pronounce a decision on its behalf directing
the CANG to issue a ruling authorizing the applicant to exercise the profession of