Inter-American Commission must eventually make in the petition lodged before it, and not to this
proceeding of provisional measures. 17
17.
As this Court indicated in its Order of June 2012, 18 in response to a request for
provisional measures, the Court must consider only the procedural obligations of the State
as a party to the American Convention; accordingly, the Court is not competent to rule on
the compatibility of the extradition procedure with the Convention or the alleged violations
of the judicial guarantees and protection of Wong Ho Wing. These aspects, including the
analysis of the guarantees that have been given to Peru that the death penalty will not be
applied if Wong Ho Wing is extradited to China, are related to compliance with the obligation
to protect and ensure life. The same can be said of the determination of facts, assessment
of the evidence and decision on merits concerning the application of the said legislative
amendment to this specific case. These arguments can be debated by the petitioners and
the State before the Inter-American Commission, in accordance with the rules established in
the Convention and in the Rules of Procedure of the said organ.
18.
The Court reiterates that it does not doubt the good faith of Peru and of the People’s
Republic of China as regards the different documents of guarantee that have been presented,
but notes that their analysis is a matter of merits that cannot be examined in the context of a
procedure on provisional measures. Similarly, regarding certain arguments presented by the
State (supra considering paragraph 12), the Court notes that it is not appropriate to evaluate
the decisions adopted by the Commission in its Admissibility Report in this matter in a
procedure on provisional measures.
19.
In addition, the Court recalls that, when adopting these measures again in its Order
of June 26, 2012, it found that “owing to the uncertainty of the State concerning the
possibility of extradition [of Wong Ho Wing],” the considerations of the Court in its Order of
May 28, 2010, regarding the existence of a situation of extreme gravity and urgency and the
need to avoid irreparable damage were applicable to the actual situation of the beneficiary. 19
Thus, the Court underscores that, in February 2012, the State indicated that “The Executive
Branch will issue the Supreme Decision, ruling on the admissibility or inadmissibility of the
17
Matter of Wong Ho Wing. Provisional measures with regard to Peru. Order of the Court of May 28, 2010,
ninth considering paragraph, and Matter of Wong Ho Wing. Provisional measures with regard to Peru. Order of the
Court of June 26, 2012, thirty-second considering paragraph.
18
Cf. Matter of Wong Ho Wing. Provisional measures with regard to Peru. Order of the Court of May 28,
2010, seventh considering paragraph, and Matter of Wong Ho Wing. Provisional measures with regard to Peru.
Order of the Court of June 26, 2012, thirty-third considering paragraph.
19
In its Orders of May 2010 and June 2012, the Court considered the following as regards compliance with
the requirements to grant these measures: (i) “the requirement of extreme gravity co-existed in this case, in both
the preventive and the protective dimension ‘based […] on the rights involved, fundamentally, the right to life, […]
as well as the danger of harm to the right of petition established in Article 44 of the same instrument. Indeed, the
Court f[ound] that the requirement of extreme gravity [was] satisfied in this matter with the determination prima
facie of the risk inherent in extraditing a person who alleges possible errors in due process, when the said extradition
could lead to the application of the death penalty in a State outside the inter-American system.” (ii) Regarding the
requirement of urgency, the Court indicated that after the Supreme Court of Justice of Peru had declared that that
the extradition of Wong Ho Wing was admissible, on January 27, 2010, “the extradition process [was] in its final
stage and the only matter pending, [… was] the decision of the Government,” so that “[Wong Ho] Wing could be
extradited at any time.” Lastly, with regard to (iii) the requirement of the irreparability of the damage, the Court
considered that this was met, “in its protective dimension, because of the risk of harm to the right to life owing to
the possibility of an irremediable measure such as the death penalty,” while “regarding the preventive dimension,
[because the beneficiary’s] extradition would thwart compliance with an eventual decision of the organs of the
system concerning the existence of a violation […] of the Convention,” because any possible violation of the
Convention that was eventually determined “could not be remedied” and “the right of petition embodied in Article 44
of the American Convention would be affected irreversibly.” Matter of Wong Ho Wing. Order of the Court of June 26,
2012, thirty-eighth considering paragraph, and Matter of Wong Ho Wing. Order of the Court of May 28, 2010,
twelfth, thirteenth and fourteenth considering paragraphs.
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