The Constitutional Court, in a judgment […] of May 24, 2011, declared admissible the
application for [habeas corpus] that has been filed and ordered the Peruvian State,
represented by the Executive, to abstain from extraditing […] Wong Ho Wing [and] urged
[it to] proceed in accordance with article 4 of the Extradition Treaty between the Republic
of Peru and the Peoples’ Republic of China[;]
Likewise, it appears that, in an Explanatory Decision, the Constitutional Court […], on June
9, 2011, clarified, at the request of the Attorney General’s Office, the ruling in its
judgment, indicating: “2. To urge the Peruvian State, represented by the Executive, to
proceed in accordance with the provisions of article 3 of the Criminal Code[;]
[…]
This Supreme Chamber has already complied with its obligations by delivering the
respective ruling, which is the equivalent of an immutable judgment and it cannot be
amended by means of a so-called “complementary advisory decision”[;]
[…]
In this legal matter […] two final judgments already exist, one of an advisory nature (of
the Judiciary), and the other of a mandatory nature (of the Constitutional Court) that the
Executive must comply with, taking into account the provisions of the law […].
26.
The above reveals that the Constitutional Court’s ruling ordering the domestic
authorities not to extradite Wong Ho Wing, and its clarification, have not been
modified by a subsequent judicial decision and that they are binding for the Executive.
However, the State has asserted before the Court that it is not clear about the
mandates of the domestic jurisdictional organs and that there is another possible
interpretation of the Constitutional Court’s ruling; basically that the extradition is
admissible insofar as there is no risk to the life of Wong Ho Wing because one of the
offenses he is accused of does not carry the death penalty while, for the other offense,
this penalty has been repealed.
27.
In addition to the uncertainty expressed by the State regarding the applicable
criteria, Peru also argued that, at the present time, the requirements of extreme
gravity, urgency and risk of irreparable harm cannot be verified in relation to the
extradition of Wong Ho Wing, owing to the repeal of the death penalty, the Eighth
Amendment to the Chinese Penal Code and its article 12, and the guarantees given by
the Peoples’ Republic of China that the death penalty will not be applied to the
proposed beneficiary.
28.
Regarding the repeal of the death penalty, the Court recalls that it had been
advised in the past that the requesting State had repealed the death penalty for one of
the offenses for which Wong Ho Wing was required. Indeed, the Court recalls that, on
March 2, 2011, Peru advised this Court that, “on February 25, [2011,] the Chinese
People’s Assembly had approved the repeal of the death penalty for the offense of
smuggling,” attaching a document in this regard. 9 The note that advised the entry into
force of this reform was presented by Peru both to the domestic courts and to this
Court as a “new fact,” on which it asked the Inter-American Court to rule.
29.
In its Order of July 1, 2011, the Court assessed positively the presentation of
the information and documentation forwarded by the State on the alleged normative
amendment that had occurred in the Peoples’ Republic of China. However, it observed
that, at that time, it did not have an official text reflecting the repeal of the death
penalty for the offense of smuggling ordinary goods in China. 10 In addition, the Court
9
Cf. Matter of Wong Ho Wing. Order of the Court of March 4, 2011, supra note ¡Error! Marcador no
definido., tenth having seen paragraph.
10
On that occasion, the Court did not receive an official copy of the Eighth Amendment of the Chinese
10