Report IACHR. Case No. 12.730 (Guatemala)

• Submitted Date: 25 November 2020
• Case Number: 12.730
• Alleged Victim: Steven Edward Hendrix
• Case Type: Cases in the Court
• Court: Inter-American Comission of Human Rights

REPORT No. 194/20

CASE 12,730

REPORT ON THE MERITS

STEVEN EDWARD HENDRIX

GUATEMALA

Approved by the Commission in its session 2179 held on J. 14, 2020
176 regular period of sessions

Cite as: IACHR, Report No. 193/20, C. 12,730. M.. Steven Edward Hendrix. Guatemala. J. 14, 2020

www.cidh.org

OEA/Ser.L/V/II.176

Doc. 207

J. 14, 2020

Original: Spanish

I. INTRODUCTION 2

II. POSITIONS OF THE PARTIES 2

A. Petitioner: 2

B. S. 3

III. ESTABLISHED FACTS 4

A. Applicable legal framework 4

B. Alleged victim’s process of registering as a notary 6

C. Additional information 7

IV. CONSIDERATIONS OF LAW 8

1. General considerations 8

2. A. of this case 9

V. CONCLUSIONS AND RECOMMENDATIONS 17

I.INTRODUCTION

1. On November 5, 2004, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission,” the “Commission,” or the “IACHR”) received a petition submitted by S.E.H. (hereinafter “the petitioner”) alleging the Republic of Guatemala (hereinafter the “G. S.,” the “S. or “Guatemala”) was internationally responsible for the violation of a series of rights enshrined in the American Convention on Human Rights (hereinafter the “Convention” or the “American Convention”) as a consequence of administrative decisions and a judicial decision preventing him from exercising the profession of notary despite having the corresponding university degree obtained in Guatemala on the grounds that he was not a G. citizen.

2. The Commission approved admissibility report 101/09 on October 29, 2009.¹ On November 20, 2009, the Commission notified the parties of the report and made itself available to help them reach a friendly settlement, but the conditions were not met for resolving the case through that process. The parties were given the time provided for in the Rules of Procedure to submit additional comments on the merits. All the information received was duly transferred between the parties.

II.POSITIONS OF THE PARTIES

1. Petitioner:

3. The petitioner stated that he was a U.S. citizen and received the degree of Juris Doctorate from the University of Wisconsin, United S.s, in 1987, as well as the degrees of Doctor of Laws and L. of the Universidad Mayor de San Andrés, Bolivia. He stated that he did his doctoral work and studied law and the notary profession at the Universidad de San Carlos de Guatemala (USAC), and said that after taking the corresponding exams, on September 18, 2000, the Board of the School of Law of the USAC of Guatemala granted him the titles of “A. and Notary.”

4. He stated that on November 22, 2000, he filed a request to register as an attorney and notary with the Association of L.s and Notaries of Guatemala. H., on February 6, 2001, its governing board resolved only to register him and swear him in as a lawyer, as domestic legislation establishes that all notaries must be G. by birth.

5. He stated that he appealed this decision to the Assembly of Presidents of the Professional Associations of Guatemala, which denied his appeal on April 22, 2002. In response to this, he filed a writ of amparo before the Third C. of the C. of Appeals, which denied it on J. 25, 2002, finding there was no evidence of any of the alleged violations.

6. He stated that lastly, he filed a writ of amparo against this resolution before the Constitutional C., which, on April 21, 2004, denied it. H., it found he could register as a notary if he underwent the naturalization process to become a G. citizen. He argued that the S. could not require him to change his citizenship in order to exercise the profession for which he was educated, trained, and sworn in the country.

7. He stated that according to the S., the justification for prohibiting a foreigner has to do with the fact that notary is a public office and that this was the L. notary system, and therefore, precedents cannot be invoked as in the US common-law system. In this regard, he stated that the notary profession in Guatemala is a public function, although notaries are not public officials, and that precedents in the United S.s prohibiting restrictions on access to the exercise of notary work based on national origin also apply to L. notary systems in the United S.s, such as in Puerto Rico and Louisiana, which are members of the International Union of Notaries. It also added that the Commission of the European Communities has found that a nationality requirement for the exercise of notary work is not applicable, even in countries with a civil law history in which the notary profession involves a public social function.

8. As far as rights, he alleged the violation of the right to nationality, arguing that denial of his registration by the Association of L.s and Notaries was discriminatory and arbitrary based on his nationality.

9. He also alleged a violation of the principle of equal protection. In this regard, he indicated that there is no legitimate or reasonable justification for prohibiting a foreigner with the required education from exercising the notary profession in Guatemala. He states that Guatemala’s international obligations on being a member of the inter-American system and the World Trade Organization prohibit nondiscrimination and supersede any requirement of the C. of the Notary Profession prohibiting foreigners from exercising that profession in Guatemala.

10. The petitioner continued by alleging a violation of his right to work. In this regard, he stated that the right to work must be guaranteed without discrimination based on nationality. This was not the case here, where he was subject to an arbitrary restriction on exercising a profession because he was not G., or allowed to exercise the profession only after renouncing his US nationality.

11. Lastly, he alleged violation of the duty to adopt domestic legal effects based on the contradiction he argues exists between domestic law prohibiting non-G.s from exercising the notary profession and international provisions.

2. S.

12. With regard to background, the S. indicated that on September 18, 2000, the alleged victim was granted the titles of lawyer and notary. He then proceeded to request registration with the Association of L.s and Notaries of Guatemala. H., in J. 2002, the association’s governing board informed him that his registration as a notary was rejected because he was not a native G. citizen, pursuant to the requirements of article 2 of the C. of the Notary Profession.

13. It added that the petitioner filed a writ of amparo before the Third C. of the C. of Appeals, which denied the writ. H., in hearing the appeal, the Constitutional C. ruled on April 21, 2004, to grant the amparo and allow the appellant’s registration to exercise the notary profession, but on the...