- 27 10. Bearing in mind the inexistence of diplomatic assurances in the case file, this Court finds that
it has not been proved that the People’s Republic of China has granted the necessary and
sufficient guarantees to safeguard the right to life of Wong Ho Wing.100
85. The Constitutional Court also amended the legal grounds for the recommendation that Wong
Ho Wing be tried in Peru, indicating that it was “pursuant to the provisions of article 3 of the
[Peruvian] Criminal Code” and not pursuant to article 4(a) of the Extradition Treaty (supra para.
83).101
C.2.a) Subsequent request made by Executive Branch
86. Following the judgment of the Constitutional Court, the Executive Branch filed various judicial
remedies to clarify the way in which this decision should be executed. On November 25, 2011, the
representative of the Ministry of Justice presented a brief in the procedure of execution of the
judgment of the Constitutional Court, indicating that the prohibition to extradite Wong Ho Wing
imposed by the Constitutional Court was “applicable only to the possibility of extradition for the
offense of evasion of customs duty or smuggling and not with regard to the offense of bribery, for
which the possibility of imposing the death penalty is not established.”102 Therefore, it asked the
42nd Special Criminal Court of the Superior Court of Justice of Lima to take the foregoing into
account and to rule “that this corresponds to the execution of judgment.”103 On November 30,
2011, it declared that the “request for clarification (definition) of the scope of the mandate of the
Constitutional Court” was inadmissible.104 The representative of the Ministry of Justice appealed
this decision and, on February 20, 2012, the “Criminal Chamber for proceedings involving
detainees” confirmed this decision. In particular, the Chamber indicated that “under article [4] of
the Organic Law of the Judiciary, the content of a judgment is immutable, apart from the
exceptions established by law.”105 The representative of the Ministry of Justice filed an appeal
based on constitutional injury requesting an interpretation of the judgment of the Constitutional
Court (infra para. 90).106
87. On December 22, 2011, the Embassy of the People’s Republic of China forwarded “the
documents relating to the pertinent legal provisions, [including article 12 regarding the
retroactivity of criminal law,] and clarification on [the application] of the eighth amendment of the
Chinese Criminal Code, issued by the [People’s Supreme Court] of the People’s Republic of
China.”107 The latter established that:
100
Ruling of the Constitutional Court of June 9, 2011 (evidence file, folios 297 and 302).
101
Cf. Ruling of the Constitutional Court of June 9, 2011 (evidence file, folio 302).
102
Brief of November 25, 2011, filed before the judge of the 42nd Special Criminal Court of the Superior Court of Justice of
Lima (evidence file, folio 337).
103
Brief of November 25, 2011, before the judge of the 42nd Special Criminal Court of the Superior Court of Justice of Lima
(evidence file, folio 340).
104
Decision of the 42nd Special Criminal Court of the Superior Court of Justice of Lima of November 30, 2011 (evidence file,
folio 8492).
105
Appeal of December 12, 2011 (evidence file, folios 2712 to 2715), and decision of February 20, 2012, of the Criminal
Chamber for proceedings involving detainees of the Superior Court of Justice of Lima (evidence file, folios 354 to 357).
106
The Ministry of Justice argued that the effects of the constitutional decision cannot be permitted to exceed those of the
application for habeas corpus filed in the instant case in favor [of] Wong Ho Wing, because the Supreme Court of Justice of the
Republic has declared admissible the passive extradition of the Chinese citizen for the offenses of evasion of customs duty and
also for the offense of bribery. Nevertheless, as can be appreciated from the arguments presented and the decisions made at
the constitutional level, no ruling was made on the possibility of carrying out the extradition for the less serious offense; that is,
for the offense of passive bribery.” Cf. Constitutional remedy of March 19, 2013 (evidence file, folios 8496 and 8497).
107
Note of the People’s Republic of China of December 22, 2011 (evidence file, folios 7479 and 7480). The case file does not
reveal the date on which the translation of article 12 on criminal retroactivity was sent, because this translation is dated