- 69 211. The Court observes that the case file does not reveal that, during the extradition process,
Wong Ho Wing or his representative failed to comply with any deadline that could have delayed the
proceedings. The representative has filed six applications for habeas corpus; however, in this
regard, it should be stressed that the presumed victim was making use of judicial remedies
established by the laws applicable to the defense of his rights, which per se cannot be used against
him.294 In this regard, this Court has considered that the filing of remedies is an objective factor
that should not be attributed to either the presumed victim or to the defendant State, but should
be taken into account as an objective element when determining whether the duration of the
proceedings exceeded a reasonable time.295 Also, following the Constitutional Court’s decision,
most of the briefs and remedies filed by the representative have sought the rapid resolution of the
proceedings, requesting the adoption of a final decision.
212. Additionally, none of the applications for habeas corpus had suspensive effects on the
extradition process, except the first application, where the court concerned ordered the suspension
“of the processing of the extradition” from February 12, 2009, to April 24, 2009, when it annulled
this suspension (supra para. 68). This period during which the proceedings were suspended will
not be taken into account when determining whether the duration of the extradition process was
reasonable.
213. The State referred to actions taken before the inter-American system and the fact that the
provisional measures were in force as one of the factors that affected the prolongation of the
process (supra para. 192). In this regard, the Court notes that, under the provisional measures, it
had ordered the State to “refrain from extraditing Wong Ho Wing” until the case had been decided
by the Inter-American Commission and subsequently by the Court. The purpose of those measures
was to avoid Wong Ho Wing being physically removed from the jurisdiction of Peru and transferred
to a jurisdiction outside the inter-American system, when violation of due process in his extradition
proceedings and a possible risk to his life and personal integrity if he was returned to the
requesting State had been alleged.296 This order did not prevent the Executive Branch of Peru from
taking a final decision for or against the extradition request; it merely sought to avoid the
294
Mutatis mutandi, Case of Genie Lacayo v. Nicaragua, supra, para. 79. See also, Case of Mémoli v. Argentina, supra, para.
174; ECHR, Case of Kolomiyets v. Russia, No. 76835/01, Judgment of February 22, 2007, para. 29, and Case of Eckle v.
Germany, No. 8130/78, Judgment of July 15, 1982, para. 82.
295
Cf. Case of Mémoli v. Argentina, supra, para. 174. See also, ECHR, Case of Eckle v. Germany, No. 8130/78, Judgment of
July 15, 1982, para. 82; Case of Poiss v. Austria, No. 9816/82, Judgment of April 23, 1987, para. 57, and Case of Wiesinger v.
Austria, No. 11796/8, Judgment of October 30, 1991, para. 56.
296
This is demonstrated by the orders of the Court in which it stated that: the requirement of extreme gravity was met in the
case of Wong Ho Wing given “the inherent risk of extraditing an individual […], when this extradition may lead to the
application of the death penalty in a State outside the inter-American system; the requirement of urgency was met because
“the possible extradition of [Wong Ho] Wing could occur at any time,” while the possible irreparable harm was related to the
preventive aspect, because if Wong Ho Wing was extradited “the harm caused was irreparable. Thus, the right of petition
established in Article 44 of the American Convention would be harmed irreversibly.” Matter of Wong Ho Wing. Provisional
measures with regard to Peru. Order of the Court of May 28, 2010, consideranda 12, 13, 14; Matter of Wong Ho Wing.
Provisional measures with regard to Peru. Order of the Court of March 4, 2011, consideranda 11, 12 and 13; Matter of Wong Ho
Wing. Provisional measures with regard to Peru. Order of the Court of June 26, 2012, consideranda 34, 35 and 36; Matter of
Wong Ho Wing. Provisional measures with regard to Peru. Order of the Court of May 22, 2013, considerandum and note 19.
These conclusions are not applicable merely to the decision in favor of extradition, but to the effective extradition and physical
removal of Wong Ho Wing from Peru and his return to the authorities of the People’s Republic of China. In addition, starting
with the new adoption of provisional measures in June 2012, this Court emphasized that, “in this matter, the preventive
dimension of the measures seeks to avoid obstruction of compliance with an eventual decision of the organs of the interAmerican system […], especially considering that, in this matter, the proposed beneficiary would be extradited to a State
beyond the scope of the protection of the inter-American human rights system.” Matter of Wong Ho Wing. Provisional measures
with regard to Peru. Order of the Court of June 26, 2012, considerandum 40; Matter of Wong Ho Wing. Provisional measures
with regard to Peru. Order of the acting President of the Court of December 6, 2012, considerandum 6; Matter of Wong Ho
Wing. Provisional measures with regard to Peru. Order of the Court of February 13, 2013, considerandum 6; Matter of Wong Ho
Wing. Provisional measures with regard to Peru. Order of the Court of May 22, 2013, considerandum 6, and Matter of Wong Ho
Wing. Provisional measures with regard to Peru. Order of the Court of August 22, 2013, considerandum 7.