- 25 Criminal Court of Lima declared the application for habeas corpus inadmissible.88 The representative appealed this decision and, on April 14, 2010, the declaration of inadmissibility was confirmed, because there had been no “violation or threat by [the President, Minister of Justice and Minister for Foreign Affairs] during the passive extradition,” or any “objective and specific harm to the rights cited,” because these persons had not issued the contested decision.89 The representative filed an appeal based on constitutional injury, which was considered admissible on May 24, 2011 (infra paras. 81 to 83).90 80. On May 1, 2011, the eighth amendment to the Chinese Criminal Code entered into force annulling the death penalty for the offense of smuggling for which the extradition of Wong Ho Wing was being requested.91 The Chargé d’Affaires of the People’s Republic of China advised the Constitutional Court of the adoption of this amendment on April 6, 2011.92 81. On May 24, 2011, the Constitutional Court decided the appeal filed based on constitutional injury (supra para. 79) indicating that: [T]he diplomatic assurances offered by the People’s Republic of China are insufficient to ensure that the death penalty will not be imposed on Wong Ho Wing. This is because, in the United Nations, the requesting State has not demonstrated that it guarantees the real protection of the right to life, because it allows extrajudicial, summary or arbitrary executions. Also, it is known in international circles that the death penalty is not imposed objectively, but is influenced by public opinion.93 82. Regarding the information received about the eighth amendment (supra para. 80), the Constitutional Court clarified that this amendment, “to a great extent, ha[d] modified the Criminal Code of the People’s Republic of China for the offense of smuggling ordinary merchandise.” However, it specified that: [T]he case file does not reveal […] that this amendment […] has been communicated officially using the diplomatic procedures of the Peruvian State. Moreover, there is no mention of whether the Constitution of the People’s Republic of China recognizes the favorable retroactivity of criminal law. Consequently, the Court f[ound] that the said letter c[ould] not be understood and interpreted as a guarantee of the non-application of the death penalty to the beneficiary of the application.94 88 Cf. Judgment of February 25, 2010 (evidence file, folio 214). 89 Cf. Judgment of the Third Criminal Chamber of the Superior Court of Justice of Lima of April 14, 2010 (evidence file, folios 216 to 224). 90 Cf. Appeal based on constitutional injury of May 4, 2010 (evidence file, folios 6419 to 6423). 91 Cf. Decision of the Permanent Criminal Chamber of February 15, 2012 (evidence file, folio 2595). 92 Cf. Judgment of the Constitutional Court of May 24, 2011 (evidence file, folio 280), and decision of the Constitutional Court of June 9, 2011 (evidence file, folio 295). Regarding the offense of smuggling, the said amendment establishes that “the first clause of article 153 of the Criminal Code is amended as follows: ‘Anyone who shall smuggle merchandise and objects that are not mentioned in articles 151, 152 and 347 of this law shall be punished pursuant to the following provision, according to the severity of the offense: (a) Anyone who shall smuggle merchandise and objects involving significant evasion of customs duty or who is a repeat offender with more than two administrative sanctions for smuggling in a year, shall be punished with imprisonment for less than three years or detention and fines of from 100% to 500% of the customs duty evaded; (b) Anyone who shall smuggle merchandise and objects involving a very high evasion of customs duty or in very serious cases, shall be punished with imprisonment for from three to 10 years and fines of from 100% to 500% of the customs duty evaded; (c) Anyone who shall smuggle merchandise and objects involving an extremely high evasion of customs duty, or in extremely serious cases, shall be punished with imprisonment for more than 10 years or life imprisonment and fines of from 100% to 500% of the customs duty evaded, or seizure of personal property.” Cf. Eighth amendment (evidence file, folio 7555). 93 Judgment of the Constitutional Court of May 24, 2011 (evidence file, folio 279). 94 Judgment of the Constitutional Court of May 24, 2011 (evidence file, folio 280).