- 90 provision that permits an individual to remain deprived of liberty.” He also affirmed, in general,
that preventive detention should not exceed a reasonable time.359
286. The evidence provided reveals that, initially, the judge was unable to decide the release
request because the provisional arrest file was with the Ministry of Justice. Following several
requests, the Ministry of Justice forwarded the file to the Seventh Criminal Court on November 25,
2011 (supra paras. 105 and 106). On December 1, 2011, this court answered the request
indicating that, “noting from a review of the extradition file forwarded by the Ministry of Justice
that the issue of a final decision is still pending [it decided that the release request should be
presented] opportunely and pursuant to the law”360 (supra para. 107).
287. At the same time, on November 16, 2011, the representative filed a fourth application for
habeas corpus against the judge’s decision to return the provisional arrest file to the Ministry of
Justice before deciding the release request (supra para. 108). In this application for habeas corpus,
the representative indicated that “if the Constitutional Court has declared extradition inadmissible,
the provisional arrest in this same context has no validity because it is a subsidiary measure of the
extradition process.”361 On May 30, 2012, the Special Criminal Court declared the application for
habeas corpus inadmissible. In this decision, the court referred to the different time limits for
detention during a criminal proceeding established by law, and the ways in which these could be
extended.362 Nevertheless, it did not refer to the application of these provisions to the specific
case. However, it did examine whether the proceedings had been conducted with due diligence and
used this Court’s criteria to examine the reasonable time. In this regard, it indicated that: (a) no
delay by the judicial authorities could be noted that would affect the reasonable time; (b)
regarding the complexity of the case, it considered that Wong Ho Wing “was deprived of his liberty
based on a request made by the People’s Republic of China, despite the […] prohibition of his
extradition [ordered by the Constitutional Court].” It also stressed that the extradition process had
not concluded, because “the Executive Branch, in a duly motivated decision, must annul the
extradition process,” and (c) regarding the procedural activity of the interested party, it indicated
that “even though it cannot be observed that this has obstructed the proceedings, based on the
preceding arguments, the constitutional application must be rejected.”363
288. This Court has established that the competent authority’s analysis of a judicial remedy
contesting the lawfulness of deprivation of liberty cannot be reduced to a mere formality; rather
359
Cf. Request dated October 18, 2011 (evidence file, folios 306 and 310 to 312).
360
Decision of the Seventh Criminal Court of El Callao of December 1, 2011 (evidence file, folio 6472).
361
Application for habeas corpus of November 16, 2011 (evidence file, folio 326).
362
In this regard, the decision indicated that “[a]rticle 137 of the Code of Criminal Procedure (currently in force) amended by
article 2 of Legislative Decree No. 983, published on July 22, 2007, has established that ‘The detention shall not last more than
nine months in the ordinary proceeding and eighteen months in the special proceeding, provided that the requirements
established in article 135 of the Code of Criminal Procedure are met. In the case of proceedings for offenses of drug-trafficking,
terrorism, spying and others of a complex nature against more than ten accused, that have harmed an equal number of
persons or the State, the length of the detention shall be doubled. When the time limit has expired, without the delivery of a
judgment in first instance, the immediate release of the accused shall be ordered, and the judge must establish the necessary
measures to ensure his presence at the trial.’ […] The said article also established that ‘When the circumstances are especially
complex or result in a special prolongation of the investigation and the accused could evade prosecution, the detention may be
extended for an equal length of time.” And ‘When the offense has been committed by a criminal organization and the accused
may evade prosecution or interfere with the probative activities, the detention may be extended for an equal length of time.
The extension of the detention shall be decided by a duly founded order, issued by the judge on his own motion, or requested
by the prosecutor and notified to the accused. An appeal is admissible against this order, to be decided by the Chamber,
following the opinion of the Superior Prosecutor, within 72 hours.’” Decision of the 30th Special Criminal Court of Lima of May
30, 2012 (evidence file, folios 6445 and 6446).
363
Decision of the 30th Special Criminal Court of Lima of May 30, 2012 (evidence file, folios 6447 and 6448).