Wong Ho Wing v. Peru

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Wong Ho Wing, a Chinese citizen, was wanted by the judicial authorities of Hong Kong, China for smuggling, money laundering, bribery, and tax evasion. He was arrested at the Lima airport as he attempted to enter Peru from the United States.

China and Peru had entered into an extradition treaty in 2001 that obligated both parties to extradite anyone in their territories who was wanted for a criminal offense. Wing argued that he should not be extradited to China because he could be executed in China for the crimes that he was charged with. He therefore asked to be put on trial in Peru.

The Second Transitory Criminal Chamber of the Supreme Court of Peru  held a hearing in which it received a report from the Chinese Customs Office that did not mention the possibility of the death penalty for the crimes Wing had committed. The Supreme Court determined that,  pursuant to the terms of the extradition treaty, the extradition request was admissible for the offenses of the evasion of customs duties and bribery, but not for the offense of money laundering.

Wing’s brother filed multiple applications for habeas corpus, alleging that extradition posed a certain and imminent threat of violation of the rights to life and personal liberty. During the proceedings, China advised the Peruvian court that it had decided not to impose the death penalty on Wing if he was extradited and convicted, even if his offenses were legally subject to the death penalty. The Constitutional Court of Peru held that the assurances by China were insufficient to ensure that the death penalty would not be imposed on Wing and recommended that he be tried in Peru.

The Court held that it had not been proved that the extradition of Wong Ho Wing would expose him to the death penalty or a real, foreseeable and personal risk of being subject to treatment contrary to the prohibition of torture or other cruel, inhuman or degrading treatment. Therefore, if Wong Ho Wing were extradited, the State of Peru would not be responsible for violating its obligation to ensure his rights to life and to personal integrity recognized in Articles 4 and 5 of the American Convention on Human Rights, or the prohibition of non-refoulement established in Article 13 (paragraph 4) of the Inter-American Convention to Prevent and Punish Torture.

"Taking into account all the preceding considerations and based on the facts of this case, the Court establishes that, pursuant to the obligation to ensure the right to life, States that have abolished the death penalty may not expose an individual under their jurisdiction to the real and foreseeable risk of its application and, therefore, may not expel, by deportation or extradition, persons under their jurisdiction, if it can be reasonably anticipated that they may be sentenced to death, without requiring guarantees that the death sentence would not be carried out. Furthermore, the States Parties to the Convention that have not abolished the death penalty may not jeopardize, by deportation or extradition, the life of any person under their jurisdiction who runs a real and foreseeable risk of being sentenced to death, unless this is for the most serious crimes for which the death penalty is currently imposed in the requested State Party. Consequently, States that have not abolished the death penalty may not expel anyone under their jurisdiction, by deportation or extradition, who may face the real and foreseeable risk of the application of the death penalty for offenses that are not punished with the same sanction within their jurisdiction, without requiring the necessary and sufficient assurances that this punishment will not be applied." Para. 134.

"Despite the foregoing, the Court considers that it has been proved that, based on the principle of the favorable retroactivity of the criminal law and the annulment of the death penalty for the offense of smuggling ordinary merchandise, this punishment could not be applied to Wong Ho Wing, if he is extradited and subsequently sentenced and convicted in China.207 Although the death penalty was in force until May 2011 for one of the offenses for which Wong Ho Wing’s extradition was requested, the Court reiterates that, in order to determine whether there is a real risk to the right to life of Wong Ho Wing if his extradition is granted, it is necessary to examine and assess all the information available at this time (supra paras. 140 and 141). Bearing this in mind, and based on the principle of the favorable retroactivity of the criminal law, the Court considers that, following the annulment of the death penalty for the offense of smuggling, there is no real risk that the death penalty will be applied legally to Wong Ho Wing if he is extradited to China." Para. 151.