IACHR
Press Release
IACHR Brings Guatemala Case before the IA Court
December 8, 2020
Washington, D.C. - On November 25, 2020, the Inter-American Commission on Human Rights (IACHR) filed an application with the Inter-American Court of Human Rights (IA Court) regarding the case of Steven Edward Hendrix, concerning Guatemala, which entails the violation of several of the rights enshrined in the American Convention as a result of administrative decisions and a judicial ruling that prevented Steven Edward Hendrix from working as a notary public on the grounds that he was not a Guatemalan national, despite his having obtained the appropriate university degree in Guatemala.
In its Merits Report, after determining that differential treatment and a restriction established in the Notary Code were applied to Mr. Hendrix, the IACHR proceeded to analyze whether the restriction in question is compatible with the American Convention, taking into account the rigorous scrutiny required of this restriction and the fact that the differential treatment was based on one of the categories established in article 1.1, namely country of origin, using a phased judgment of proportionality.
Considering that the decisions that prevented the victim from practicing as a notary in Guatemala were based on article 2.1 of the Notary Code, the IACHR deemed that the legality requirement of the restriction had been satisfied. It also deemed that the requirement regarding the purpose of the restriction had been satisfied, given that the state invoked an argument based on “sovereignty” as a mechanism to guarantee the appropriate use of public trust, which constitutes a legitimate purpose.
On the matter of the appropriateness of the restriction, the IACHR evaluated whether there is a relationship of causality from the means to the end between the distinction and the end it is pursuing—in other words, whether prohibiting foreign nationals from practicing as notaries in Guatemala contributes in any way to the end invoked by the State. First, the IACHR determined that the State did not justify or explain in detail why conferring public trust on a foreign national would jeopardize national sovereignty. Second, in response to the State’s argument that notaries are public officials and should therefore be Guatemalan nationals, the IACHR made a preliminary observation that neither Guatemalan legislation nor the available comparative legislation identifies notaries as civil servants or public officials, as they do not represent the will of the State.
Although the State has not presented an explanation, the IACHR understood that matters such as the superior knowledge that a national might in principle have regarding the legislation and the level of trust the citizenry might place in them when exercising their profession might underlie the State’s argument regarding legitimate purpose, given that the case concerns the crucial matter of public trust. However, the IACHR deemed that even if this argument were valid, the State has less harmful means at its disposal for satisfying this end than categorically forbidding foreigners from practicing as notaries. It also reasoned that the technical expertise of foreign individuals can be compared to that of nationals by accrediting their prior educational achievements or by otherwise testing their knowledge, while an accountability scheme or periodic evaluations of those working as notaries would enable the States to assess their trustworthiness and whether they follow procedure appropriately.
Third, the IACHR noted that various national and international courts have analyzed prohibitions preventing non-nationals from practicing as notaries within Latin notary systems and have ruled that such limitations constitute discrimination on the grounds of nationality or unreasonable restrictions on the right to work. According to the comparative and international jurisprudence reviewed by the IACHR, the following can be said of the function of notaries public: (i) they are not civil servants or public officials in the traditional sense; (ii) they do not exercise functions “at the heart of representative government”; (iii); they play no part in designing or implementing public policies; and (iv) they do not have coercive or punitive powers. Likewise, notaries public can be held accountable should any irregular course of action arise, and they may also be subject to periodic reviews or evaluations of their knowledge to ensure they continue to conduct themselves appropriately and provide services to a high technical standard.
In light of the above, the IACHR concluded that the State did not provide sufficient grounds to prove that prohibiting foreign nationals from working as notaries public is a restriction that satisfies the requirements established by the American Convention. Accordingly, the IACHR concluded that the provision that forth in article 2.1 of the Guatemalan Notary Code and the resulting restriction and difference in treatment of the victim, which prevented him from registering as a notary in Guatemala (an indispensable requirement for exercising the profession), were arbitrary and thus violated the principle of equality and nondiscrimination set out in article 24 of the American Convention in relation to the obligations set forth in article 1.1 and 2.
In its merits report, the IACHR made the following recommendations to the State of Guatemala:
1. Provide comprehensive tangible and intangible redress for the rights violations described in the Merits Report, including the payment of compensation for damages caused. Specifically, it should provide compensation for having imposed an arbitrary restriction and differential treatment.
2. Adopt the necessary measures to allow Stephen Edward Hendrix to register as a notary with the Association of Attorneys and Notaries and exercise the profession of notary public in Guatemala.
3. Implement the legislative and other measures needed to remove the requirement established in article 2.1 of the Guatemalan Notary Code that notaries public be natural Guatemalan citizens.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
No. 292/20