agreements signed by the State, but merely a demonstration that the nationality
requirement for notaries lacks a reasonable basis and is relativized by domestic law itself.
87.
Therefore, the restriction suffered by the victim in this case is even more unequal,
assuming – regardless of the intention of the legislator – a casuistic character. It is the
objective dimension of equality between immigrants that is jeopardized when the legislator
allows himself this type of incoherence. Also, it should be pointed out that, in general,
immigrants do not have political rights and, in the practice, this deprives them of the
valuable instruments for collective mobilization and pressure inherent in representative
democracy to obtain, by the efforts of their specific group, the repeal of the legislation,
not of isonomy. Therefore, there is a special need for vigilance on the part of the
international jurisdiction with regard to the human rights of non-nationals who, owing to
the distinction related to political rights, are especially vulnerable to discriminatory actions
based on their origin.
88.
In the absence of individualization and the inexistence of a legitimate suspicion or
an activity that has been verified to prejudice State security, the restriction of the exercise
of the notarial profession by non-nationals becomes a generalized and disproportionate
measure, given the lack of objective reasons that justify the restriction. If there is a conflict
between the right to equality and non-discrimination and other fundamental guarantees,
the proportionality of any nationality-based difference for the exercise of the profession
should be assessed on a case-by-case basis, as an exceptional measure, and the
State should provide a detailed explanation of the grounds for the application of this
distinction.
(iii) Conclusion on the proportionality test
89.
Based on the foregoing, despite the importance of the objectives alleged by the
State, the restriction on non-nationals registering as notaries is not compatible with the
Convention. The measure is not suitable owing to the absence of a rational connection
between the restrictive measure that prevented Mr. Hendrix from exercising the profession
of notary and the objectives of the protection of sovereignty and human rights alleged by
the State to justify this restriction. Moreover, it is not necessary because the objective
sought may be achieved by less harmful means that already exist in the laws of Guatemala,
such as the use of the criterion of domicile, the system of legal responsibility, and the
obligation to hand in the protocol when leaving the country. Lastly, it is disproportionate,
strictly speaking, because when weighing the severity of the restriction imposed on the
right to equality and non-discrimination against the satisfaction of the objectives
supposedly guaranteed by this restriction, the sacrifice of the said right is flagrant without
an imperative of the same magnitude being satisfied on the other side of the scales.
90.
The conclusion that the measure imposed was disproportionate is, therefore,
inevitable. The solution adopted by the State in relation to the claims made by Mr. Hendrix
deviates from the chain of precedents of the Court, and constitutes not a mere
distinction, but rather real discriminatory treatment with regard to non-nationals who wish
to exercise the profession of notary in Guatemala.
91.
Based on these conclusions, I will now set out my assessment of the right to judicial
protection and to work.
IV.
Violation of Article 25 of the Convention: Judicial Protection
92.
Article 25 of the Convention establishes the obligation of States to guarantee a
simple, prompt and effective judicial remedy before a competent judge or court against
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