- 47 149. In addition, as explained by expert witness Bingzhi Zhao during the hearing,203 and also in a legal opinion of the Max Planck Institute204 and the text of the norm, article 12 of the Criminal Code recognizes the principle of the retroactivity of the most favorable criminal law for the purpose of punishment.205 150. Peru has not abolished the death penalty completely. The Peruvian Constitution accepts the possibility of the death penalty for crimes of treason and terrorism.206 However, article 517 of the Peruvian Code of Criminal Procedure indicates that extradition shall not be ordered when “[t]he offense for which extradition is requested shall contemplate the death penalty in the requesting State and the latter shall not provide assurances that it will not be applied (supra para. 137). Since Wong Ho Wing is wanted for smuggling and other economic offenses, it is evident that Peru was obliged to demand the necessary and sufficient assurances that the death penalty would not be applied to him if his extradition was granted (supra para. 134). 151. Despite the foregoing, the Court considers that it has been proved that, based on the principle of the favorable retroactivity of the criminal law and the annulment of the death penalty for the offense of smuggling ordinary merchandise, this punishment could not be applied to Wong Ho Wing, if he is extradited and subsequently sentenced and convicted in China.207 Although the death penalty was in force until May 2011 for one of the offenses for which Wong Ho Wing’s extradition was requested, the Court reiterates that, in order to determine whether there is a real risk to the right to life of Wong Ho Wing if his extradition is granted, it is necessary to examine and assess all the information available at this time (supra paras. 140 and 141). Bearing this in mind, 203 Cf. Statement made by Bingzhi Zhao during the public hearing held in this case. 204 According to this opinion, “[t]he principle of legality (nullum crimen sine lege, nulla poena sine lege) is recognized in Chinese criminal law: according to article 12(1) of the Criminal Code, […] the retroactive application of a new criminal provision is prohibited by article 12(1), unless the punishment contained in the new provision is more favorable (the lex mitior principle). In other words, if the new provision is more favorable, its application is compulsory.” It also explained that, currently, “under Chinese criminal law, the death penalty is not applicable to the case of Wong Ho Wing for [any of the offenses for which his extradition is being requested].” Opinion of Experts in Chinese Criminal Law with regard to money-laundering, bribery, smuggling and customs duty evasion in the case of Wong Ho Wing (merits file, folio 820). 205 The said article 12 stipulates that: “For those acts committed after the founding of the People’s Republic of China and before the application of this Code, the laws in force at that date shall be applied if the laws at that date did not define such acts as offenses; if those laws defined such acts as offenses and there are reasons to continue the proceedings as stipulated in the eight section of Chapter IV (General Aspects) of this Code, the laws in force at that time shall be applied; however, if this Code does not define such acts as offenses or defines them as acts that would involve a light punishment, this Code shall be applied. Sentences that have been handed down continue in effect according to the laws in force on the date they were delivered prior to the entry into force of this Code.” Official translation of the Criminal Code of the People’s Republic of China (evidence file, folio 7504). 206 Article 140 of the Constitution establishes that: “The death penalty may only be applied for the crime of treason in case of war, and of terrorism pursuant to the laws and treaties to which Peru is a party and by which it is bound.” 1993 Constitution of Peru. Available at: www.congreso.gob.pe/ntley/ConstitucionP.htm. Despite this, the Commission and the representative indicated that such punishments are not applied in practice because the death penalty is not contemplated for the said crimes in the substantive criminal laws in force. Cf. Merits Report of the Commission (merits file, folio 79), motions and arguments brief of the representative (merits file, folio 305). The Permanent Criminal Chamber of the Supreme Court of Justice, in its second advisory decision, indicated that “the punitive probability [of the death penalty] is contrary to Peru’s extradition laws, because our domestic laws expressly prohibit the application of the death penalty. Indeed: (i) article 140 of the Constitution establishes that the death penalty is only applicable to the crimes of treason in case of war, and terrorism; (ii) article 517(3)(d) of the Code of Criminal Procedure indicates that extradition shall be denied when the offense for which extradition is requested contemplates the death penalty in the requesting State and the latter has not provided assurances that it will not be applied; (iii) article 55 of the Constitution establishes the supremacy and observance of the provisions of the human rights treaties, such as the American Convention on Human Rights, the Inter-American Convention against Torture, and the International Covenant on Civil and Political Rights and its Second Optional Protocol aiming at the abolition of the death penalty.” Advisory decision of the Permanent Criminal Chamber of January 27, 2010 (evidence file, folio 170). 207 Expert witness Bingzhi Zhao emphasized that “following the eighth amendment of the Criminal Code, even when diplomatic assurances are given that the death penalty will not be imposed, the death penalty would not be imposed for smuggling ordinary merchandise.” Statement made by Bingzhi Zhao during the public hearing held in this case.