- 39 2009, rectified, in the domestic sphere, by means of effective and appropriate remedies, any
possible errors or omissions that could have occurred during that first stage of the process.
Regarding the second advisory decision of January 27, 2010, the State underlined that the
Supreme Court of Justice had assessed the assurances that the death penalty would not be applied
presented by the diplomatic authorities and the People’s Supreme Court of China and considered
them an incontrovertible commitment. It also indicated that “the present context in the requesting
State is not as the [Commission] and the representative […] seek to affirm.”
B. Considerations of the Court
124. In order to examine the State’s international responsibility owing to the alleged risk to
violation of the rights of Wong Ho Wing in the requesting State, the Court will present some
considerations on: (B.1) the scope of the obligation to ensure rights and the principle of nonrefoulement in relation to possible risk to the rights to life, to personal integrity and to due process
in the context of extradition proceedings; (B.2) the nature of the international responsibility of the
State in this case and the information that the Court must examine in order to analyze the specific
circumstances with regard to (B.3) the alleged risk of the application of the death penalty, and
(B.4) the alleged risk of torture and other forms of cruel, inhuman or degrading treatment in this
case.
B.1) General considerations on the obligation to ensure rights and the
principle of non-refoulement in the face of possible risks to the rights to
life, to personal integrity and to due process in extradition proceedings
125. The general obligation to respect and ensure rights gives rise to special duties, which are
determined based on the particular needs for protection of the subject of law, owing to his personal
situation or to the specific situation in which he finds himself.169 The Court considers that, in this
case, the obligation of the State, faced with the request for Wong Ho Wing’s extradition, gave rise
to the obligation to ensure the rights recognized in Articles 4 (Right to Life)170 and 5 (Right to
Humane Treatment),171 in relation to Article 1(1) of the Convention,172 together with the principle
of non-refoulement established in Article 13(4)173 of the Inter-American Convention to Prevent and
Punish Torture (hereinafter also “the ICPPT”).174
169
Cf. Case of the Pueblo Bello Massacre v. Colombia. Merits, reparations and costs. Judgment of January 31, 2006. Series C
No. 140, para. 111, and Case of the Pacheco Tineo Family v. Bolivia, Preliminary objections, merits, reparations and costs.
Judgment of November 25, 2013. Series C No. 272, para. 128.
170
The relevant part of Article 4 of the Convention establishes that: “Every person has the right to have his life respected.
This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of
his life. 2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and
pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment,
enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it
does not presently apply. 3. The death penalty shall not be reestablished in States that have abolished it. 4. In no case shall
capital punishment be inflicted for political offenses or related common crimes.”
171
The relevant part of Article 5 of the Convention establishes that: “1. Every person has the right to have his physical,
mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment
or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.”
172
Article 1(1) of the Convention establishes that: “The States Parties to this Convention undertake to respect the rights
and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those
rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion,
national or social origin, economic status, birth, or any other social condition.”
173
Article 13 (paragraph 4) of the Inter-American Convention to Prevent and Punish Torture establishes that: “Extradition
shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger,
that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad
hoc courts in the requesting State.”
174
The State ratified the Inter-American Convention to Prevent and Punish Torture on March 28, 1991. In this case, only the