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and (iii) analysis of the state authorities’ actions between the time the Constitutional Court delivered its
May 24, 2011 ruling and its noncompliance to this day.
2.3.1 Analysis of the state authorities’ actions between the time the extradition request was filed in
November 2008 and issuance of the first advisory resolution on January 20, 2009
260. Since the day he gave his statement on October 28, 2008 –the day following his arrestMr. Wong Ho Wing has claimed that in his country he might face the death penalty and therefore asks
to be tried in Peru. On November 3 and 14, 2008, a request was received seeking extradition for the
crimes of crimes of smuggling, customs tax evasion and bribery; the extradition request indicated which
articles of the Criminal Code of the People’s Republic of China had allegedly been violated, which were
articles 153, 154, 191, 389 and 390. As observed in the section on facts established, the Spanish
translation of these provisions was not only poor, but also made a clear and unequivocal understanding
of the law difficult.
261. Apart from the translation problems, the legal provisions were not set out in order and
were incomplete. This is an important consideration in this analysis, since only the full text would reveal
whether these violations carried the death penalty. It was the People’s Republic of China that failed to
provide the full text. Thus, the transcription of Article 153 of the Code of Criminal Procedure indicated
that the crime of smuggling carried a sentence of more than ten years or life imprisonment; it added
that in very serious cases, Article 151(4) of the Code of Criminal Procedure would apply. As was later
discovered in the inter-American proceedings on this case, this paragraph allows for the possibility of
imposing the death penalty. However, this particular provision was not among those that accompanied
the extradition request.
262. The Peruvian State processed the extradition request without demanding a clear and
complete copy of the applicable provisions, an essential step to ensure that the death penalty would not
be applied. It is worth noting that under Article 518 of the Peruvian Code of Criminal Procedure and the
Bilateral Extradition Treaty, Peru had a certain period of time in which to ask the requesting State to
correct or complete the extradition request and the documentation. However, the Peruvian authorities
did not do this.
263. Apart from the applicable laws, at that point in time no specific assurances were
demanded that the death penalty would not be applied. Without any assurances, and despite the indicia
that the request was incomplete and riddled with translation problems, the internal extradition process
moved forward; on January 20, 2009, the Criminal Chamber of the Supreme Court issued an advisory
resolution in which it indicated that the request met Peru’s legal requirements. The analysis focused on
the purely formal requirements of the Bilateral Treaty and on the question of the similarity of legal
provisions. The advisory resolution made no reference to the fact that the documentation provided was
incomplete or to the fact that no assurances had been offered. Indeed, nowhere in the resolution is
any reference made to the possibility that the death penalty might be applied.
264. The Commission observes that even if only in an advisory capacity, judicial oversight of
proceedings of this type is essential to ensure compliance with the State’s legal, constitutional and
international obligations. In the case of the Peruvian State, the Criminal Chamber of the Supreme Court
had a significant role to play in determining whether all laws were being observed; if its opinion in an
extradition case was not in favor of extradition, that opinion was binding on the Executive Branch.