33.
As this Court indicated in its Order of May 2010, 13 in response to a request for
provisional measures, the Court must consider only the procedural obligations of the
State as a party to the American Convention; accordingly, the Court is not competent
to rule on the compatibility of the extradition procedure with the Convention or the
alleged violations of the judicial guarantees and protection of Wong Ho Wing. These
aspects, including the analysis of the guarantees that have been given to Peru that the
death penalty will not be applied if Wong Ho Wing is extradited to China, are related to
compliance with the obligation to protect and ensure life. The same can be said of the
determination of facts, assessment of the evidence and decision on merits concerning
the application of the said legislative amendment to this specific case. These
arguments can be debated by the petitioners and the State before the Inter-American
Commission, in accordance with the rules established in the Convention and in the
Rules of Procedure of the said organ.
34.
In addition, regarding compliance with the requirements for granting the
requested provisional measures, the Court recalls that, when it adopted the provisional
measures in this matter, it reasoned that the requirement of extreme gravity existed
in this case, in both the preventive and the protective dimensions of the measures.
Thus, the adoption of these measures was:
Based, in its protective and preventive dimensions, on the rights involved;
fundamentally, the right to life, embodied in Article 4 of the American Convention,
owing to the risk arising from the possible application of the death penalty in the
requesting State, when it has been denounced that the extradition procedure has
not respected international law, particularly the judicial guarantees and judicial
protection established in Articles 8 and 25 of the American Convention; as well as
the possible harm of the right to petition established in Article 44 thereof. Indeed,
the Court finds that the requisite of extreme gravity is satisfied in this matter with
the determination prima facie of the inherent risk of extraditing anyone who alleges
possible flaws in due process, when the said extradition may lead to the application
of the death penalty in a State outside the inter-American system. 14
35.
Similarly, with regard to the requirement of urgency, when adopting these
provisional measures, the Court maintained that:
On January 27, 2010, the Supreme Court of Justice of Peru decided to declare the
extradition of [Wong Ho] Wing admissible. Following this decision, the extradition
process is in its final stage and the only matter pending, apart from possible
appeals, is the decision of the Government, by means of a supreme decision issued
with the agreement of the Council of Ministers, following the report of the Official
Commission presided by the Ministry of Justice and composed of the Ministry of
Foreign Affairs […]. Consequently, the possible extradition of [Wong Ho] Wing
could occur at any moment. 15
definido., ninth considering paragraph, and Matter of Wong Ho Wing. Order of the Court of March 4, 2011,
supra note ¡Error! Marcador no definido., fourteenth considering paragraph.
13
Matter of Wong Ho Wing. Order of the Court of May 28, 2010, supra note ¡Error! Marcador no
definido., seventh considering paragraph, and Matter of Wong Ho Wing. Order of the Court of March 4,
2011, supra note ¡Error! Marcador no definido., fourteenth considering paragraph.
14
Matter of Wong Ho Wing, Request for provisional measures with regard to the Republic of Peru.
Order of the Court of May 28, 2010, twelfth considering paragraph.
15
Matter of Wong Ho Wing. Order of the Court of May 28, 2010, supra note ¡Error! Marcador no
definido., thirteenth considering paragraph.
12