- 50 inhuman or degrading treatment. However, in this case, the judicial authorities who intervened did
not analyze this risk.
159. Based on the above, the Court will now examine: (a) the State’s obligation to consider the
argument concerning the risk of a violation of personal integrity, and (b) the existence of the
alleged risk of treatment contrary to the prohibition of torture or other forms of cruel, inhuman or
degrading treatment in the case of Wong Ho Wing, taking into account: (i) the alleged situation of
risk in the requesting State, and (ii) the diplomatic assurances provided by the People’s Republic of
China in this regard.
B.4.a) Obligation to consider the arguments concerning the risk of a violation of personal
integrity
160. Regarding a possible risk of torture in case of return, the Committee against Torture has
indicated that “the State party and the Committee are obliged to assess whether there are
substantial grounds for believing that the author would be in danger of being subjected to torture
were he/she to be expelled, returned or extradited, [thus,] the risk of torture must be assessed on
grounds that go beyond mere theory or suspicion[, although] the risk does not have to meet the test
of being highly probable.” It also indicated that the petitioner “must establish that he/she would be in
danger of being tortured and that the grounds for so believing are substantial […], and that such
danger is personal and present.”214
161. Although it is true that the main allegation of risk by the presumed victim and his
representative throughout the extradition process has been the possible application of the death
penalty, the Court notes that at different times during the extradition process, both the presumed
victim and his representative have mentioned the possible violation of his right to personal
integrity if he is extradited to China and, on one occasion, they even referred to Article 13(4) of
the ICPPT.215 In addition, the file of the extradition process contains news and reports of
214
UN, Committee against Torture, General Comment No. 1: Implementation of Article 3 of the Convention in the Context of
Article 22, U.N. Doc. CAT, A/53/44, November 21, 1997, paras. 6 and 7. To verify a substantial, personal and present danger of
torture, the Committee against Torture has provided the following, non-exhaustive, guidelines, on some of the pertinent
considerations to assess whether expulsion entails a real risk of torture: (a) Is the State concerned one in which there is
evidence of a consistent pattern of gross, flagrant or mass violations of human rights? (b) Has the author been tortured
or maltreated by or at the instigation of or with the consent or acquiescence of a public official or other person acting in
an official capacity in the past? If so, was this the recent past? (c) Is there medical or other independent evidence to
support a claim by the author that he/she has been tortured or maltreated in the past? Has the torture had aftereffects?
(d) Has the situation referred to in (a) above changed? Has the internal situation in respect of human rights altered? (e)
Has the author engaged in political or other activity within or outside the State concerned which would appear to make
him/her particularly vulnerable to the risk of being placed in danger of torture were he/she to be expelled, returned or
extradited to the State in question? (f) Is there any evidence as to the credibility of the author? (g) Are there factual
inconsistencies in the claim of the author? If so, are they relevant? Cf. UN, Committee against Torture, General Comment
No. 1: Implementation of Article 3 of the Convention in the Context of Article 22, U.N. Doc. CAT, A/53/44, November 21, 1997,
para. 8.
215
In this regard: (i) in the second application for habeas corpus, of October 2009, the representative mentioned “the certain
and imminent risk of violation of the rights to life and personal integrity that subsists against […] Wong Ho Wing.” He asserted
that “[t]here is a certain and imminent risk to personal liberty and rights related to this, among which the rights to life and
personal integrity are particularly significant; because, if he is extradited to the People’s Republic of China, there are no
guarantees that he will be subject to a fair trial and, consequently, he may be sentenced to death.” Application for habeas
corpus of October 12, 2009 (evidence file, folios 105 and 106); (ii) in the third application for habeas corpus of February 9,
2010, even though he made no specific allegations in this regard, the representative based himself on the principle of nonrefoulement established in Article 13(4) of the ICPPT. Thus, he indicated that “Article 13(4) of the Inter-American Convention
against Torture, to which Peru is a party, includes an article on non-refoulement that expressly prohibits extradition in cases in
which the life of a person whose extradition is requested is in danger, and 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.” He also indicated that “[t]he rights affected include the rights to right to
life and personal integrity, […] because if passive extradition is granted and the Chinese citizen [Wong Ho Wing] is returned to
the People’s Republic of China, his life and physical integrity would be jeopardized, because there is no material possibility that
the Peruvian authorities could monitor the execution of the sentence, owing, among other reasons, to the fact that not even