with the principle of forseability of the law. The Commission recommended in its report, and
subsequently requested from the Court as a measure of reparation, that an ex officio review
of the provisional arrest of Mr. Wong Ho Wing be carried out, taking into consideration that
the extradition proceeding must end as briefly as possible and that “any judicial
determination regarding the personal liberty of Mr. Wong Ho Wing must be made in strict
compliance with the principles of exceptionality, necessity, and proportionality, in the terms
described in the report.” In a similar sense, the representative argued in the brief
containing pleadings and motions that, since the decision of the Constitutional Tribunal that
ordered to refrain from extraditing Mr. Wong Ho Wing, “the State has nonetheless kept Mr.
Wong Ho Wing in unlawful and arbitrary deprivation of liberty,” in addition to being detained
“without judicial control and for an excessively prolonged period of time[,] in violation of
Article 7(5) of the American Convention.” Like the Commission, the representative noted
that there are no norms “establishing a maximum period of duration for a provisional
arrest,” thereby impeding “the forseability of the deprivation of liberty and places the case
in a situation of legal uncertainty as to rights and specifically personal liberty.” As a
consequence of this argument, the representative requested as a measure of reparation
that the State be ordered to grant “Mr. Wong Ho Wing’s immediate liberty.”
14.
The Court recalls that in the context of provisional measures, it cannot consider the
merits of any arguments other than those that relate directly and strictly with extreme
gravity, urgency, and necessity of avoiding irreparable damage to persons. All other matters
can only be brought to the attention of the Court in the framework of a contentious case. 13
This Court has also noted that in a proceeding for provisional measures, it falls upon the
Court to consider only the State’s procedural obligations pursuant to the American
Convention, under which this Court has no jurisdiction, in the framework of provisional
measures, to rule on the compatibility of the extradition proceeding with the Convention or
the alleged violations of the rights of Mr. Wong Ho Wing. 14
15.
The alleged unlawfulness and arbitrariness of the detention of Mr. Wong Ho Wing
constitutes one of the principle arguments of the Commission and of the representative in
terms of the merits of the contentious case before this Court. Moreover, a review of the
need for such detention, in the case of the Commission, or the immediate release, in the
case of the representative, are principle claims of both participants. Therefore, as
considered in other cases, 15 this Court considers that it is not possible, in the proceeding
for provisional measures, to assess that good law exists as claimed by the representative of
Mr. Wong Ho Wing, without issuing a ruling on the merits of the case, which would in turn
imply a revision of whether the State is adhering to the American Convention. In this case,
one of the main claims made by the Commission and the alleged victim would be satisfied
with the release of Mr. Wong Ho Wing. The adoption of such a measure would involve a
rendering a ruling in advance through an incidental circumstance with the subsequent
establishment in limine litis of the facts and the respective consequences which are subject
of the main debate; and this obviously would take sense away from the decision on the
merits, which is where the disputed legal responsibilities should be defined. 16 The matter
13
Cf. Matter of James et al.. Provisional measures regarding Trinidad and Tobago. Order of the Court of
August 29, 1998, Considering clause 6; Case of the Caracazo. Request for Provisional measures regarding
Venezuela. Order of the Court of May 28, 2010, Considering clause 7, and Matter of Alvarado Reyes et al.
Provisional measures regarding México. Order of the Court of November 23, 2012, Considering clause 4.
14
Cf. Matter of Wong Ho Wing. Provisional measures regarding Perú. Order of the Court of May 28, 2010,
Considering clause 7, and Case of Wong Ho Wing. Provisional measures regarding Perú. Order of the Court of
January 29, 2014, Considering clause 11.
15
Cf. Matter of Castañeda Gutman. Request for Provisional measures regarding México. Order of the Court of
November 25, 2005, Considering clause 6.
16
Cf. Matter of Castañeda Gutman. Request for Provisional measures regarding México. Order of the Court of
6