deliberate search for inexistent patterns.166 Such risks are increased, particularly due to
the abundant presence of false cognates, as is the case of the concept of the “notary” in
the domestic sphere. Thus, when developing arguments, comparative law should be used
with great care and methodological rigor, paying attention to the contextual and legal
characteristics of what is being compared.
116. Regarding the legal nature of the Guatemalan notary, as the State argued in its
answering brief, the notary is not considered to be a public servant or official.167 In
Guatemala, the notarial function is exercised as a liberal profession, which is not subject
to direct, immediate and continuing dependence on the public administration. As the
Commission noted with regard to notaries: (i) they do not function as public officials or
servants in the traditional sense; (ii) they do not perform functions that “go to the heart
of representative government”; (iii) they do not have any role in formulating or executing
public policies, and (iv) they do not have coercive or sanctioning authority.”168
117. Thus, the mere citing of the Latin notarial system is not sufficient to substantiate
the argument of professional impediment. Even though the system may be the same, in
different countries the notarial practice is incompatible with the exercise of other
liberal professions, especially that of law. Therefore, in my opinion, the argument of
comparative law presented by the State, in the sense that the nationality requirement to
exercise the notarial function is a characteristic common to numerous countries under this
system, is not the most adequate in this case.
118. It is inherent in the procedural notion of equal opportunities that the skills required
in a selection process have a rational connection with the performance of the activities for
which the person is selected. Therefore, the first step in an analysis of comparative law is
to examine whether the objectives of the activities in each country are similar. It is worth
indicating, however, that in many of those States the exercise of the notary profession is
incompatible with the exercise of the law – not only in the same cases in which they
participate, but in general – contrary to the system in Guatemala, where such occupations
are compatible.
Argentina169
ARTICLE 7. The exercise of the notarial function is incompatible:
d) With the exercise of law, prosecution, or any other liberal profession.
Bolivia170
ARTICLE 13. (Incompatibilities). The exercise of the notarial function by notaries
vested with the legal authority to attest documents is incompatible with the
exercise of law or of any public post or private occupation, with the exception of
university teaching, provided there is no incompatibility in the timetable.
Brazil171
166
Cf. WATSON, Alan. Legal transplants: an approach to comparative law. 2nd ed. Athens: University of
Georgia Press, 1993, p. 10-12.
167
Cf. Answering brief of June 14, 2021, para. 55.
168
Cf. Merits Report (IACHR), para. 68.
Cf. Law 12,990 (Argentina). Available at: http://servicios.infoleg.gob.ar/infolegInternet/anexos/4500049999/45260/texact.htm. Consulted, May 4, 2023.
169
Cf. Law No. 483 (Bolivia). Available at: https://sistemas.mre.gov.br/kitweb/datafiles/SantaCruz/pt-br/file/
lei%20483%20de%2025%20de%20janeiro%20de%202014%20-%20lei%20do%20notoriado%20plurinacional
.pdf. Consulted, May 4, 2023.
170
Cf. Law No. 8,935 of November 28, 1994 (Brazil). Available at: http://www.planalto.gov.br/ccivil_03/leis/
l8935.htm. Consulted, May 4, 2023.
171
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