- 38 argued that the obligations to respect and ensure the rights to life and to personal integrity have
“a procedural component” that “requires the State to request and assess diligently the assurances
that the death penalty will not be imposed on him legally, and also a careful examination of the
context in the requesting country, in terms of both the death penalty and of torture or cruel,
inhuman or degrading treatment.” It underlined that Peru has not taken “into account that the
requesting State committed serious omissions and irregularities in the initial request, and has an
internationally-“known context as regard the application of the death penalty and reports of the
use of torture.” It indicated that the assurances given to date “only seek to respond to the first
level of risk”; that is, that the death penalty would not be imposed legally, but “serious concerns
[remain] in view of the inexistence of judicial mechanisms to implement them.” The Commission
concluded that the State had failed to comply with its obligation to ensure the rights to life and
personal integrity of Wong Ho Wing.
122. The representative indicated that Peru had failed to comply with its obligation to ensure the
rights to life and personal integrity of Wong Ho Wing at “two moments”: (i) when twice approving
the extradition of the presumed victim even though the authorities had not obtained “sufficient,
clear and reliable assurances” that the death penalty would not be imposed on him and that he
would not be subjected to torture or other forms of cruel, inhuman or degrading treatment, and (ii)
by the “authorities’ systematic failure […] to take a final decision on the extradition of Wong Ho
Wing in compliance with the judgment of the Constitutional Court.” Regarding the second advisory
decision, he indicated that “the supposed assurances presented to the Peruvian State by the
People’s Republic of China that it would not impose the death penalty are not reliable.” He added
that, owing to the context of torture that existed in the People’s Republic of China, the Peruvian
State “should also have requested […] the assurance that torture or other cruel, inhuman or
degrading treatment would not be applied.” In addition, he indicated “that the assurances alone
are insufficient to provide adequate protection against the risk of ill-treatment”; the State should
also examine the human rights situation in China and the special situation of Wong Ho Wing.
Furthermore, the representative argued that the obligations arising from the American Convention
and the Inter-American Convention to Prevent and Punish Torture were complemented by article 5
of the bilateral Extradition Treaty between Peru and the People’s Republic of China and by article
517 of the new Code of Criminal Procedure that, interpreted together, establish that extradition
shall not take place, among other reasons: (1) if the offense for which extradition is requested
bears the death penalty in the requesting State and the latter fails to provide assurances that it will
not be applied, and (2) if the proceedings to which the individual extradited will be subject do not
comply with the international requirements of due process.
123. The State affirmed that it had complied with its international obligation to respect and ensure
the rights to life, personal integrity and judicial guarantees of the petitioner. It underlined that the
Supreme Court of Justice and the Constitutional Court had assessed the guarantees that existed
when they took their decision, but were unable to rule on the additional assurances provided by
China and on the annulment of the death penalty as a criminal sanction for the offense of
smuggling ordinary merchandise, which had also not been assessed by the Commission. The State
emphasized that the Court should consider the circumstances at the time of the proceedings before
it, and assess carefully the outdated or, at the very least, incomplete sources of the Commission
and the petitioner. The State also indicated that the principle of non-refoulement of Article 13(4) of
the Inter-American Convention to Prevent and Punish Torture operates provided that there is a
well-founded presumption (and not a mere unsubstantiated affirmation) about the risk that an
individual’s life could be harmed or that he could be subjected to torture or cruel, inhuman or
degrading treatment. The State argued that, in this case, this well-founded presumption has not
been proved and that, in the domestic courts, the burden of proof was on the presumed victim
and/or his representative. Regarding the actions of the State authorities from the time of the
extradition request and until the first advisory decision, the State argued that the Commission had
not taken into account that the nullification of the ruling of the Supreme Court of January 20,