i) Arguments of the Inter-American Commission and of the State
5.
Following its initial submission, the Inter-American Commission added that the
Ministry of Justice had continued insisting on its request for a “complementary
advisory decision” by the Supreme Court of Justice, a procedure that would be
conducted in parallel to the decisions made in the context of monitoring compliance
with the Constitutional Court’s judgments. The Commission reiterated its concern
because of the change in Peru’s position before the organs of the inter-American
system and, in this regard, recalled that, when the State asked the Court to lift the
provisional measures, it did so based on the undertaking to comply with the
Constitutional Court’s rulings that ordered that Wong Ho Wing should not be
extradited. This occurred months after the authorities were aware of the amendment
of the Chinese Penal Code, which they now argue as a “new fact.” The State is now
arguing that there is no risk of the application of the death penalty, openly
disregarding the rulings of the Constitutional Court. According to the Commission, this
position of the Ministry of Justice “is a reinterpretation” of the Constitutional Court’s
rulings that “directly and specifically ordered that Wong Ho Wing should not be
extradited.” The Commission argued that “[i]n the absence of the undertaking to abide
by the rulings of the Constitutional Court, the grounds for lifting the provisional
measures no longer existed, and [the analysis of gravity, urgency and irreparability
made in the Order of May 28, 2010,] was fully applicable to the actual circumstances
of the extradition procedure.”
6.
The Commission also stressed “that its opinion in favor of lifting the measures
was based exclusively on the Peruvian State’s explicit declaration that it would comply
with the rulings of the Constitutional Court, and not on the supposed amendment.” In
addition, the Commission underscored that the State had requested that the petition
be archived “arguing that, in compliance with the rulings of the Constitutional Court,
the Executive was about to issue the final decision, denying the extradition.”
7.
Furthermore, the Commission observed that the State was insisting on the
guarantees offered by the requesting State, a matter that the Inter-American Court
had decided in its first ruling concerning the provisional measures adopted previously
in this matter, to the effect that it was not appropriate to analyze them during these
proceedings, because they related to the merits of the matter. The Commission also
considered that the information provided by the State about the amendment to the
Chinese Penal Code (infra considering paragraph 12) “was insufficient to conclude
categorically that there was no risk of the application of the death penalty.” In this
regard, it explained that, since the State had requested guarantees and translations
piecemeal, “it is not possible to understand clearly the offenses for which the
extradition of Wong Ho Wing is being requested, their characteristics, and the
punishments that could be imposed for each of them.” According to the Commission,
the translation provided on “the supposed favorable retroactivity” of this amendment
gives rise to concern, because “it contains serious grammatical errors that make it
difficult to understand,” in addition to the fact that “it appears to regulate a situation
other than that of the amendments”; apart from the fact that, in any case, the analysis
of this point relates to the merits of the matter.
8.
In addition, in its brief of April 16, 2012, the Commission advised that, on
March 14, 2012, the Permanent Criminal Chamber of the Supreme Court of Justice had
rejected the request of the Ministry of Justice that it issue a “complementary advisory
decision” (infra considering paragraph ¡Error! No se encuentra el origen de la
referencia.). The Commission indicated that this decision was relevant because: (a) it
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