which had been forwarded by the requesting State, were “intended to overcome the
formal objections and prove that there was no risk whatsoever of the application of the
death penalty” to Wong Ho Wing. The State affirmed that the Court should rule on
these documents in order to decide whether there was a risk of the application of the
death penalty in this case, without delaying its decision on their implications while
waiting for the Commission to analyze the merits, which could take several years and
would maintain Wong Ho Wing in a situation of legal uncertainty.
16.
Regarding the Constitutional Court’s ruling ordering that Wong Ho Wing should
not be extradited, Peru indicated that this decision “merely ruled on a supposed risk of
application of the death penalty” and did not take into account the Supreme Court’s
declaration of admissibility with regard to the offense of bribery, which had never been
punished with the death penalty.
17.
The State also reiterated that it had to comply with other international
obligations, such as those included in the Inter-American Convention against
Corruption, the United Nations Convention against Corruption, and the extradition
treaty with the Peoples’ Republic of China, which established that “the only reasonable
justification [not to extradite …] would be an explicit jurisdictional mandate that […]
prevents this.” The State argued that the application of these treaties is not
incompatible with the American Convention, but rather complementary to it.
18.
In response to the questions posed by the Court regarding the recent decision
of the Permanent Criminal Chamber of the Supreme Court of Justice (supra having
seen paragraphs 5 and 8), the State argued that this decision did not change the
procedure or “give rise to any effects in relation to the rulings of the Constitutional
Court,” so that the Advisory Decision of the Supreme Court declaring the extradition
request admissible based on the offenses of customs tax evasion and bribery,
conditional on the guarantees of the Peoples’ Republic of China not to impose the
death penalty on him continued to be valid. It also argued that the Supreme Court had
not ruled on the new fact but had “merely clarified that it was not appropriate for it to
deliver an additional ruling on the issues within its jurisdiction in relation to the
extradition of Wong Ho Wing.” The State indicated that “the jurisdictional stage of the
extradition procedure has terminated.” However, since the extradition procedure has
been related to and affected by other jurisdictional proceedings in the domestic and
the international spheres, the Executive has taken measures that allow it to establish,
“with the greatest possible margin of safety,” the real content of these mandates in
order to comply with its treaty-based obligations. In this regard, it added that the
Executive “is in a position to take its decision; nevertheless, it is exhausting the formal
and legal mechanisms to determine explicitly and certainly the margins within which
its decision can be taken, without this being said to unduly affect, disobey or interpret
the mandates of the jurisdictional organs that have issued them.”
19.
In this regard, the State affirmed that it had considered it desirable to exhaust
all the mechanisms to obtain one of two rulings from the jurisdictional organs: (a) a
decision explicitly confirming that, with the elimination of the risk of the application of
the death penalty, the extradition can be evaluated, either with the guarantees
provided or for the offense that was never punished with the death penalty, or (b) “a
ruling that explicitly establishes that the person subject to extradition has obtained a
mandate of impunity that protects him from prosecution, irrespective of whether or
not his life is in danger.” In this regard, the State indicated that the binding nature of
the Constitutional Court’s rulings does not mean that “the way in which [its] mandate
must be executed is the one […] proposed by Wong Ho Wing’s defense counsel,”
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