9
diplomatic guarantees,9 a judicial guarantee,10 and also a diplomatic note addressed directly
by the requesting State to this Court,11 according to all of which, Mr. Wing can be extradited
without any risk that the death penalty will be applied. The Court assesses positively the
existence of the said guarantees and does not doubt the good faith of the States of Peru and
the People’s Republic of China with regard to the said documents.
9.
Nevertheless, the Court considers that the analysis of the guarantees received by
Peru is a question of merits, which is related to compliance with the State’s international
obligation derived from Articles 4 and 1(1) of the Convention, not to subject anyone to the
risk of the application of the death penalty via extradition. Furthermore, it is related to the
formalities of due process that domestic law ensures in the extradition process. 12 Hence,
assessment of the pertinence and appropriateness of the said guarantees, as well as of the
alleged violations of the rights established in Articles 8 and 25 of the American Convention,
corresponds to the examination of the merits of the case, which the Inter-American must
eventually make in the petition lodged before it, and not by means of this provisional
measures procedure.
10.
As its consistent case law indicates, when presented with a request for provisional
measures, the Court cannot examine the merits of any arguments other than those strictly
related to the extreme gravity, urgency and need to avoid irreparable damage to persons.
Any other matter can only be submitted to the Court’s consideration in a contentious case.13
In this regard, the adoption of provisional measures cannot and must not entail a ruling on
the merits of the request, but only admits the possibility that a decision in this regard could
eventually be delivered.14
*
*
*
11.
On previous occasions, this Court considered it necessary to adopt provisional
measures in situation in which the application of the death penalty was being debated, in
9
Cf. Note of February 2, 2009, issued by the Consul of the Embassy of the People’s Republic of China in the
Republic of Peru, and notes of December 10 and 11, 2009, issued by the Ambassador Extraordinary and
Plenipotentiary of the People’s Republic of China in the Republic of Peru (File of request for provisional measures,
Brief of March 8, 2010, with the State’s observations, attachments 33 and 27, respectively).
10
Cf. Order of December 8, 2009, issued by the People’s Supreme Court of the People’s Republic of China
(File of request for provisional measures, Brief of March 8, 2010, with the State’s observations, attachment 27).
11
Cf. Letter N.O. No. 020/2010 of April 22, 2010, addressed to the acting president of the Court by the
Chargé d’Affaires of the Embassy of the People’s Republic of China in the Republic of Peru (File of request for
provisional measures, Brief of the State of May 10, 2010, attachment 3).
12
Code of Criminal Procedure of Peru. Article 517. Rejection of extradition.
[…] 3. Neither shall extradition be ordered when: […] (d) the crime for which the extradition is
requested is punishable by the death penalty in the requesting State and the latter has not provided
guarantees that it will not be applicable.
Cf. Brief of March 8, 2010, with the State’s observations (File of request for provisional measures, folio 131).
13
Cf. Case of James et al. Provisional measures with regard to Trinidad and Tobago. Order of the InterAmerican Court of August 29, 1998, sixth considering paragraph; Matter of Belfort Istúriz et al., supra note 3, ninth
considering paragraph, and Matter of Eloisa Barrios et al., supra note 6, third considering paragraph.
14
Cf. Case of James et al. Provisional measures with regard to Trinidad and Tobago. Order of the President
of the Inter-American Court of Human Rights of May 27, 1998, sixth considering paragraph, and Case of James et
al. Provisional measures with regard to Trinidad and Tobago. Order of the President of the Inter-American Court of
Human Rights of June 29, 1998, sixth considering paragraph.