77.
Considering all these elements, it is evident that the guarantee of the proper
exercise of the notarial profession does not depend on the national origin of the
professional and is not increased by this. As expert witness Roberto P. Saba argued: “it is
possible that Guatemalan nationals do not have roots, ties or domicile in Guatemala, or
are unable to perform their function, or their performance is not satisfactory, and that
Guatemalan non-nationals have roots, ties or domicile in Guatemala, exercise their
functions excellently, and their performance is faultless.”127
78.
Considering that the laws of Guatemala establish suitable alternative mechanisms
to ensure the proper exercise of the notarial function that uphold the objectives of
protection of sovereignty and legal certainty and security without requiring a distinction
between nationals and non-nationals who aspire to exercise the notary profession, it
should be concluded that the requirement of Guatemalan nationality does not meet the
criterion of necessity and, therefore, violates the right to equality and non-discrimination.
However, I will now examine the last category of the proportionality test, in order to
exhaust the aspects that make the nationality requirement disproportionate.
3. Strict proportionality
79.
Regarding this last category of the test, the Court has alleged that “[a]t this stage
of the analysis, whether the restriction is strictly proportionate must be considered so that
the sacrifice inherent in such restriction is not exaggerated or disproportionate to the
advantages obtained through such limitation,”128 and that “[t]o weigh this up, it is
necessary to analyze: (i) the level of impact on one of the rights in question, determining
whether the intensity of this impact was serious, intermediate, or moderate; (ii) the
importance of satisfying the opposing right, and (iii) whether the satisfaction of that right
justified the restriction of the other one.”129
80.
In this regard, I propose a hypothetical abstraction of non-compliance with the two
previous stages of the test in order to evaluate, in greater detail, the strict proportionality
in relation to the first criterion mentioned in the precedent cited in the preceding
paragraph; that is, the level of impact on the right to equality and non-discrimination.
81.
According to the arguments submitted by the State, there is no absolute
impediment to the exercise of the notarial function by non-nationals, insofar as the law
allows them to become naturalized, and naturalized Guatemalans meet the nationality
requirement stipulated in article 2 of the Notarial Code. In Guatemala, as a general rule,
the acquisition of Guatemalan nationality requires renouncing the original nationality,
according to article 146 of the Constitution and article 37 of the Nationality Law. Let me
recall that the right to equality and non-discrimination is essential for the guarantee of
other human rights and that there is an inextricable relationship between an individual’s
nationality and identity. Therefore, to condition the exercise of a profession to the
renunciation of the nationality of origin constitutes a significant sacrifice not only of the
right to equality and non-discrimination, but also of the right to identity.
the notary, when he is not domiciled in the department of Guatemala, and the latter shall forward it to the
General Archive of Protocols within eight days. The written notice shall indicate the name and address of the
notary with whom the protocol has been deposited.”
127
Cf. Expert opinion of Roberto P. Saba of March 21, 2022, p. 20.
Cf. Case of Usón Ramírez v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of
November 20, 2009. Series C No. 207, para. 79; Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador.
Preliminary objections, merits, reparations and costs. Judgment of November 21, 2007. Series C No. 170, para.
93; Case of Kimel v. Argentina. Merits, reparations and costs. Judgment of May 2, 2008. Series C No. 177, para.
83, and Case of Yvon Neptune v. Haiti. Merits, reparations and costs. Judgment of May 6, 2008. Series C No.
180, para. 98. See also, Case of the “Juvenile Re-education Institute “ v. Paraguay. Preliminary objections,
merits, reparations and costs. Judgment of September 2, 2004. Series C No. 112, para. 228.
128
Cf. Case of Usón Ramírez v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of
November 20, 2009. Series C No. 207, para. 80.
129
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