ceased to exist, because the Constitutional Court had ordered the State to abstain
from extraditing Wong Ho Wing and to proceed to prosecute him by representation in
Peru. The State attached a copy of the judgments of the Constitutional Court of May 24
and June 9, 2011, in the first of which, among other considerations, the said Court
indicated:
In this regard, the Inter-American Court of Human Rights has emphasized that Articles 4 and
1(1) of the American Convention on Human Rights, recognize the international obligation of
the States Parties “not to subject a person to the risk of the application of the death penalty
via extradition”[;]
Nevertheless, the Peruvian State has two obligations that, supposedly, it must fulfill. On the
one hand, it has the obligation to extradite Wong Ho Wing owing to the Extradition Treaty
between the Republic of Peru and the People’s Republic of China. On the other hand, it also
has the obligation not to subject Wong Ho Wing to the risk of the application of the death
penalty via extradition and to prosecute him for the offenses for which his extradition was
requested.
Apparently, the above-mentioned obligations are incompatible, because if Wong Ho Wing is
extradited, the Peruvian State is prevented from prosecuting him. To the contrary, if the
Peruvian State decides to prosecute Wong Ho Wing, it would be prevented from extraditing
him, preferring to safeguard the protection of the right to life. This apparent conflict of
obligations must be resolved, bearing in mind the protection of the right to life of Wong Ha
Wing, which is also an obligation imposed on the Peruvian State under Articles 4 and 1(1) of
the American Convention on Human Rights.
7.
The representative asked that the provisional measures be maintained, among
other arguments because, even though “the Constitutional Court has delivered
judgment, to date, Wong Ho Wing continues to be deprived of his liberty.” In addition,
he argued that “[s]ince it has been decided that extradition is not appropriate, it is
evident that, in this context, the detention is no longer valid.” He also stated that the
Constitutional Court’s judgment “does not imply that the reasons have disappeared for
which, at any time, he can be prosecuted under the domestic jurisdiction, or be
expelled from Peru so that, once he leaves the country, he may be captured by
Interpol.” Consequently, the situation of gravity that justified the petition before the
inter-American system “subsists […] with other characteristics that make the presence
of the Inter-American Commission necessary […] and, above all, the effective
implementation of the provisional measure ordered by the Court.” Lastly, he stated
that, to date, there had been no final ruling on the merits of the matter by the
Commission, which “prolongs […] the situation of legal uncertainty that directly affects
the petitioner.”
8.
The Inter-American Commission assessed positively the judgments delivered by
the Constitutional Court and observed that, according to the information provided,
“they would eliminate juridically the possibility that the State of Peru order the
extradition of Wong Ho Wing to the People’s Republic of China.” In addition, the
Commission took note of the express indication of the State in its reports to the Court
that “it would strictly observe the said Constitutional Court judgments, in accordance
with domestic law.” In conclusion, it considered that the Constitutional Court’s
judgment had changed the factual presumptions that justified maintaining the
measures and found that the State’s request to lift the measures was admissible.
9.
The Court observes that the arguments made by the representative to request
the continuation of these provisional measures (supra considering paragraph **) refer
to issues relating to the merits of the matter being processed before the InterAmerican Commission, as well as other aspects outside the purpose of this provisional
proceeding.
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