“refrain from extraditing Wong Ho Wing until the organs of the inter-American human
rights system had examined and ruled on the [case].” That ruling has been made today
by this Judgment; thus, up until this time, there has been no delay in adopting the final
decision on the extradition, and the time frame for adopting this decision has not yet
commenced. Abstract considerations regarding delays in extradition proceedings, the
eventual possibility that these may be attributed to the State, and elements that may
make these delays unreasonable are interesting, but are entirely inapplicable to this
case.
4.
Furthermore, the analysis of the requirement concerning the complexity of the
matter, which concluded with the mere recognition that “the case is complex,” does not
accord with the extreme complexity of the case owing to the alternatives resulting from
the determination of whether or not the offense for which extradition to the People’s
Republic of China could be granted was or is punished by the death penalty, and to the
difficulties in obtaining an accurate translation from Chinese (paras. 60 to 93 of the
Judgment).
Violation of Article 7(2) of the Convention
5.
According to the Judgment (paras. 259 to 262), the State did not violate Article
7(2) of the Convention, which establishes that: “No one shall be deprived of his physical
liberty except for the reasons and under the conditions established beforehand by the
Constitution of the State Party concerned or by a law established pursuant thereto.” The
Judgment does not refer to any legal or constitutional provision that authorizes this
deprivation of liberty. First, article 2.24 (f) of the Constitution (cited in para. 240 of the
Judgment) contains no reference to an extradition request as a legitimate reason for
deprivation of liberty. Second, both the legal provision cited in para. 241 (article 523 of
the Peruvian Code of Criminal Procedure) and the Extradition Treaty between China and
Peru (article 9, cited in para. 239) refer to a different situation to that of this case: to
what Peru’s domestic laws call “provisional or pre-extradition arrest” and the treaty calls
“preventive detention” requested “before the presentation of the extradition request,”
which should cease when “30 days have passed without the formal submission of the
extradition request” (article 523.6 of the Peruvian Code of Criminal Procedure) or “if the
competent authority of the Requested Party has not received the formal extradition
request within 60 days of the detention of the person sought,” which “may be extended
for a further 30 days when the Requesting Party provides reasons that justify this”
(article 9.4 of the Extradition Treaty between China and Peru).
6.
Consequently, there were no legal or constitutional grounds for the deprivation
of liberty. For it to have been lawful, a legislative norm would have to have existed
establishing the conditions for deprivation of liberty in the case of an extradition
request. Thus, Article 7(2) of the Convention was violated.
Non-compliance with Article 2 of the Convention
7.
The considerations in the previous section reveal that the Peruvian State failed
to comply with its obligation to adopt domestic legal provisions, inasmuch as its practice
uncertainty” about the possibility of extraditing him, based on presumed “new facts.” These measures were
maintained by orders dated December 6, 2012, February 13, May 22 and August 22, 2013, and January 29 and
March 31, 2014. In both May 2010 and June 2012, the provisional measures were ordered to allow the interAmerican system to examine and rule on this case, as well as to prevent thwarting compliance with an eventual
decision by its organs. Based on the orders of January and March 2014, the measures remain in force” (italics
added).
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