66
was set in motion whose effect was to obstruct observance of this court ruling. But the only relevant
decision for purposes of this analysis is the definitive court ruling issued on May 24, 2011. That court
ruling was not the advisory resolution, but the final ruling issued on the petition of habeas corpus in
which the Executive Branch is ordered to stop the extradition process. Even so, two years and two
months later, that court ruling not to extradite Mr. Wong Ho Wing has not been enforced.
198. The available information indicates that Mr. Wong Ho Wing is still being deprived of his
liberty without legal justification, relegated to a kind of legal limbo since the purpose of his arrest, to
assure his eventual extradition, ceased to exist two and half years ago as a result of the Constitutional
Court’s order prohibiting his extradition. Even though that binding court ruling eliminates extradition,
the information available indicates that no measures have been taken to bring a legal case in Peru
concerning the alleged crimes for which Mr. Wong Ho Wing’s extradition to the People’s Republic of
China was sought. Were that the case, under the American Convention and the standards described
earlier, a court order for his preventive detention would have to be issued.
199. Thus, the Commission considers that this legal limbo to which Mr. Wong Ho Wing’s right
to personal liberty has been relegated is another abuse under Article 7(3) of the American Convention,
and has allowed the victim to be deprived of his liberty for an excessive period of time, in violation of
Convention Article 7(5).
200. Finally, as for the element of foreseeability that the European Court has examined in
cases of this kind, the Commission observes that even through the applicable legal provisions stipulate a
number of time periods for deprivation of liberty, they are referring to the period prior to formalization
of the request for extradition (see supra Facts established, for example Article 9(4) of the Bilateral
Extradition Treaty between Peru and the People’s Republic of China, and Article 523(6) of the Peruvian
Code of Criminal Procedure). As for the procedure for taking a decision on the extradition request per
se, the available information indicates that there is no maximum time period that a person can be
deprived of his or her liberty while that procedure is in process; nor is there any time frame within which
the proceeding must be completed. Article 523(9) of the Code of Criminal Procedure states that a
“person under arrest may obtain provisional release upon expiration of the legal deadlines prescribed in
the treaty or in the law that is the basis for the extradition request, or if the person whose extradition is
sought meets the procedural conditions to qualify for provisional release (…).” The Commission notes
that the applicable bilateral treaty does not establish a maximum legal time period for the provisional
arrest while the extradition request is being decided. The Commission has no information on the legal
deadlines referenced in this article. In the IACHR’s view, the absence of a specific maximum time period
for a provisional arrest with a view to extradition, combined with the previous considerations, are
incompatible with the principle of foreseeability and, in practice, have allowed the excessive duration of
Mr. Wong Ho Wing’s deprivation of liberty.