of China in compliance with the provisions of the judgment of the Constitutional
Court.” 8
23.
The Court observes that, contrary to its assertions on that occasion, the State
now alleges that the Advisory Decision of the Supreme Court of Justice declaring the
extradition request admissible “remains in force” and that the Executive could take a
decision along these lines, but “is exhausting the formal and legal mechanisms to
determine explicitly and certainly the margins within which its decision can be taken”
(supra considering paragraph 18). Therefore, the Court notes that, following the lifting
of the measures, the State became uncertain about the possibility of extraditing Wong
Ho Wing and the scope and interpretation that it should give to the rulings of its own
domestic courts in this regard.
24.
In this regard, on February 20, 2012, the Superior Court of Justice of Lima
decided an appeal filed by the Ministry of Justice in which the latter requested
“clarification of the execution of the judgment delivered by [the Constitutional Court],”
taking into account that “the possibility of issuing [a] ruling for the offense that is not
punished with the death penalty is not excluded” and that it had not taken into
consideration the existence of “a new fact” consisting in the repeal of the death
penalty for one of the offenses notified. The Superior Court of Justice of Lima declared
the petition inadmissible, considering that:
The content of a judgment cannot be changed, unless this is based on the exceptions
allowed by law […]; also […] only the literal meaning is admitted to interpret a final
and enforceable judgment; consequently, it is not possible to examine any “new fact”
[…]; furthermore, taking into account that the law does not allow this possibility, then,
based on this formal reason alone, the request is inappropriate and should be rejected;
if we add to the above the validity of the principle “that it is not possible to do
indirectly what the law prohibits doing directly,” we must state that it is not admissible
to “reduce” or “expand” the effects of a final judgment by an interpretation[.]
25.
In addition, on March 14, 2012, the Permanent Criminal Chamber of the
Supreme Court of Justice ruled on another request by the Executive, this time for the
said court to issue a “complementary advisory decision” in the extradition procedure
taking into account that, on May 1, 2011, “the death penalty for the offense of
smuggling ordinary goods, of which Wong Ho Wing is accused, had been repealed” and
other facts “relating to the implications of the execution of the Constitutional Court’s
judgment in relation to the offenses that entail the risk of the death penalty.” The
Permanent Criminal Chamber of the Supreme Court of Justice declared: (a)
“purposeless” the holding of a complementary public hearing in the extradition
procedure; (b) “purposeless, owing to the request being unfounded [sustracción de la
material], the emission of [a] new advisory decision or ‘complementary advisory
decision’ as the Ministry of Justice is seeking, and that the Executive must adopt the
decision provided for by law,” and (c) “the proceedings in the jurisdiction of the
Supreme Court of the Republic of Peru had concluded” in relation to this extradition
request. The grounds for this decision were as follows:
In these extradition proceedings, it appears that two jurisdictions, the ordinary and the
constitutional, have already issued final rulings[;]
[…]
8
Report No. 410-2011-JUS/PPES presented by the State on August 4, 2011 (provisional measures
file, Tome IV, folios 1329 and 1331).
9