principle of equality before the law and non-discrimination because the distinction made
was objective, proportionate, reasonable, legitimate and justified. Consequently,
Guatemala was not internationally responsible for violating Articles 24, 1(1) and 2 of the
Convention.
B. Considerations of the Court
53.
In light of the foregoing, the Court finds it relevant to refer to the following points:
B.1) The function of public notary in Guatemala; B.2) The principle of equality and nondiscrimination; B.3) Analysis of the specific case, and B.4) The rights to judicial protection,
nationality, work, and property.
B.1. The function of public notary in Guatemala
54.
The expert opinion provided to the Court by Gabriel Orellana Rojas reveals that the
condition of nationality to exercise notarial functions in countries with a Latin notarial
system is a common requirement.51 In this regard, expert witness Orellana Rojas stated
that this requirement was included in the Principles for the legal organization of the Latin
notarial system adopted at the First Congress of the Latin Notarial System. The principles
establish the requirement of citizenship by birth or naturalization of the country in which
the profession is exercised.52
55.
In this regard, several countries that share the Latin notarial system have
established the requirements of nationality as essential in order to grant the title of notary.
Currently, this is the standard in most countries in the region, including: Argentina,53
Expert witness Gabriel Orellana Rojas stated that, in the region, there are two systems that regulate notarial
functions: the Anglo-Saxon notary system and the Latin notary system. Cf. Written expert opinion submitted to
the Inter-American Court by Gabriel Orellana Rojas (evidence file, folios 2901 to 2929), and also provided during
the public hearing before this Court on March 28, 2022. Under the Anglo-Saxon system, notaries who are known
as notary public, merely provide external authenticity to the documents they authorize or in which they intervene.
Consequently, the notarial function is limited to verification of certain facts, such as the identity of the grantors
in a document and the authentication of their signatures, also the reception of their sworn or unsworn statements
and confirmation that a document was signed in their presence. Under the Anglo-Saxon system, it is not the
notary’s function to verify whether or not the necessary requirements and assumptions have been met to ensure
the validity of the legal affair documented. The notary public does not draft the documents submitted to him or
control their legality; therefore, he does not need to have knowledge of the law; he is not vested with the State’s
“fe pública” (legal authority to attest documents), and he does not authorize public instruments with erga omnes
effects. In addition, under the Anglo-Saxon system, the notary does not need to be impartial and there are no
requirements for access to the function. To the contrary, under the Latin system, notaries produce a special type
of document: the public instrument. Under Latin-type systems, such documents are attributed with substantive,
executive and evidentiary effects, qualities that a notarized document under the Anglo-Saxon system does not
possess. Thus, under the Latin notarial system, the legislator has attributed privileged effects to the notarized
public instrument. Under the Latin system, notarized documents are those authorized by the notary and their
purpose may be to legalize any kind of act or business. Furthermore, their authenticity includes their authorship,
signatures, date and content. Also, under the Latin system, notarized documents enjoy the presumption of the
legality, veracity and integrity of their content and can only be contested in court. They have evidentiary and
enforceability value. Added to this, under the Latin system, owing to its legal investiture, the notarial function
can be extended to matters of voluntary jurisdiction so that, under the said voluntary jurisdiction, notaries can
examine, process and decide matters in which no lawsuit has been filed pursuant to the competence established
in domestic law. It is worth pointing out that there may be substantial differences in the exercise of notarial
functions in each country based on the norms that regulate their functions. Cf. Written expert opinion submitted
to the Inter-American Court by Gabriel Orellana Rojas, supra, and also provided during the public hearing before
this Court, supra, and amicus curiae submitted to the Inter-American Court of Human Rights by the International
Union of Notaries (merits file, folios 649 to 688).
51
Cf. Written expert opinion of Gabriel Orellana Rojas, supra, also provided during the public hearing before
the Court, supra.
52
53
“ARTICLE 1. To exercise notarial functions, it is necessary: (a) To be Argentine by birth or naturalized, and
in the latter case, have been naturalized for ten years […].” Cf. Law 12990, Professional Exercise by Notaries,
art. 1. Consulted on July 14, 2022. Available at: http://servicios.infoleg.gob.ar/infolegInternet/anexos/4500049999/ 45260/texact.htm
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