and composed of the Ministry of Foreign Affairs. […] Thus, [Wong Ho] Wing could be
extradited at any time.7
13.
Lastly, with regard to the requirement of irreparable damage, in its order of
May 28, 2010, the Court verified the existence of the said requirement in its preventive
and protective dimension and concluded that it:
has been complied with, 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. Indeed,
the possible application of the death penalty entails the most extreme and irreversible
situation. Regarding the preventive dimension, [Wong Ho] Wing’s extradition would thwart
compliance with an eventual decision of the organs of the system concerning the existence of
a violation of Article 8 and 25 of the Convention. Indeed, if the examination of the petition
lodged with the Commission leads to the conclusion that the alleged flaws in the extradition
process truly existed, the damage caused could not be remedied. Thus, the right of petition
embodied in Article 44 of the Convention would be affected irreversibly.8
14.
Also, regarding the State’s argument that the Court should have analyzed or
verified the existence of the guarantees issued by the People’s Republic of China and
determine that the requirement for the provisional measures no longer existed, the
Court recalls that it has already ruled in this regard when adopting these measures and
affirmed that:
The analysis of the guarantees received by Peru is a question concerning the merits, related
to compliance with the State’s international obligation derived from Articles 4 and 1(1) of the
Convention, not to subject anyone to the risk of the application of the death penalty via
extradition. Furthermore, it is related to the formalities of due process that domestic law
ensures in the extradition process. […] Hence, assessment of the pertinence and
appropriateness of the said guarantees, as well as of the alleged violations of the rights
established in Articles 8 and 25 of the American Convention, corresponds to the examination
of the merits of the case, which the Inter-American must eventually make in the petition
lodged before it, and not by means of this provisional measures procedure.9
In the case of this request for provisional measures, the Court must define whether these
requisites are met and consider only the State’s obligations of a procedural nature as a party
to the American Convention. To the contrary, on this occasion, the Court is not competent to
rule on the compatibility of the extradition procedure with the Convention or on the alleged
violations of [Wong Ho] Wing’s judicial guarantees and protection. These aspects, including
the analysis of the guarantees that Peru has 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 guarantee life […]. These arguments can be debated by the petitioners and the
State before the Inter-American Commission, according to the rules established in the
Convention and in the Commission’s Rules of Procedure10.
15.
In addition, with regard to the status of the proceedings concerning petition P366-09, the Court takes note of the information provided by the Inter-American
Commission, that the matter is at the merits stage and that measures have been taken
to process it promptly. It also observes that the Commission advised that it anticipates
issuing the corresponding report on merits during the current year (supra considering
paragraph 7).
16.
From the information provided by the parties during the public hearing, the
Court considers that the circumstances persist that opportunely justified the adoption
7
Matter of Wong Ho Wing, supra nota 6, thirteenth considering paragraph.
8
Matter of Wong Ho Wing, supra nota 6, fourteenth considering paragraph.
9
Matter of Wong Ho Wing, supra nota 6, ninth considering paragraph.
10
Matter of Wong Ho Wing, supra nota 6, seventh considering paragraph.
6