8
5.
This request for provisional measures does not arise from a case before the Court,
but rather in the context of petition P-366-09, which the Inter-American Commission has
been processing since March 27, 2009, and which is currently at the admissibility stage.
Consequently, examination of both the protective and the preventive dimensions of
provisional measures is in order. Nevertheless, the Court recalls that for both the protective
and the preventive dimension, the three requisites stipulated in Article 63(2) of the
Convention must be fulfilled, in order to grant the provisional measures requested; namely
(i) “extreme gravity”; (ii) “urgency,” and (iii) that they seek to “avoid irreparable damage to
persons.” These three conditions co-exist and must be present in any situation in which the
Court is asked to intervene.6
6.
Regarding the gravity, for the purposes of the adoption of provisional measures, the
Convention requires that this be extreme; in other words that the gravity is of the utmost
and most intense degree. The urgent nature implies that the risk or threat involved is
imminent, and requires an immediate response to remedy it. Lastly, as regards the damage,
there must be a reasonable probability that this will occur; moreover, it should not refer to
juridical rights or interests that can be repaired.7
7.
In the case of this request for provisional measures, the Court must define whether
these requisites are met and consider only the State’s obligations of a procedural nature as a
party to the American Convention. To the contrary, on this occasion, the Court is not
competent to rule on the compatibility of the extradition procedure with the Convention or
on the alleged violations of Mr. Wing’s judicial guarantees and protection. These aspects,
including the analysis of the guarantees that Peru has that the death penalty will not be
applied if Mr. Wing is extradited to China, are related to compliance with the obligation to
protect and guarantee life (infra ninth considering paragraph). These arguments can be
debated by the petitioners and the State before the Inter-American Commission, according
to the rules established in the Convention and in the Commission’s Rules of Procedure.
*
*
*
8.
Under international law, in cases in which the possible application of the death
penalty is debated, the organs of protection analyze the way in which the States conduct
extradition procedures in light of their treaty-based obligations,8 including an examination of
the guarantees given to the State requested to extradite an individual. In the instant matter,
in addition to denying the existence of violations of due process, Peru has provided two
6
Cf. Case of Carpio Nicolle et al., supra note 4, fourteenth considering paragraph; Matter of Belfort Istúriz
et al., supra note 3, seventh considering paragraph, and Matter of Eloisa Barrios et al. Provisional measures with
regard to Venezuela. Order of the Inter-American Court of Human Rights of February 4, 2010, second considering
paragraph.
7
Cf. Matters of the Monagas Detention Center (“La Pica”), the Capital Region Penitentiary Center Yare I and
Yare II (Yare Prison), the Central Occidental Region Penitentiary Center (Uribana Prison), and the Capital Detention
Center El Rodeo I and El Rodeo II. Provisional measures with regard to Venezuela. Order of the Inter-American
Court of Human Rights of November 24, 2009, third considering paragraph, and Matter of Belfort Istúriz et al.,
supra note 3, eighth considering paragraph.
8
Cf. U.N. Human Rights Committee, inter alia, Cox v. Canada, Communication No. 539/1993, U.N. Doc.
CCPR/C/52/D/539/1993, 31 October 1994, para. 10.3, and Charles Chitat Ng v. Canada, Communication No.
469/1991, U.N. Doc. CCPR/C/49/D/469/1991, 5 November 1993, para. 6.1. See also: European Court of Human
Rights, inter alia, Al-Saadoon and Mufdhi v. the United Kingdom, Application No. 61498/08, Judgment of 2 March
2010, para. 128, and Soering v. the United Kingdom, Application No. 161, Judgment of 7 July 1989, para. 85 to
91.