I/A Court H.R., Case of Wong Ho Wing v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of June 30, 2015. Series C No. 297.

Non official brief

 

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

 

Facts – The applicant was a national of the People’s Republic of China who was wanted by the authorities of Hong Kong (China) for smuggling ordinary merchandise, money-laundering and bribery. On 27 October 2008 the Peruvian authorities arrested him at Lima airport in compliance with an Interpol Red Notice. He was held on “provisional or pre- extradition arrest” before being put on house arrest on 10 March 2014.

 

On 14 November 2008 Peru received an extradition request from China. On 10 December 2008 a public hearing was held during which the applicant and his representative mentioned that the smuggling offence was punishable by the death penalty. On 20 January 2009 the Second Transitory Chamber of the Peruvian Supreme Court of Justice issued the first advisory decision in the extradition proceedings, declaring the extradition request admissible for the offences of evasion of customs duty or smuggling and bribery. Following that decision, on 26 January 2009, the applicant’s brother filed an application for habeas corpus. On 24 April 2009 the 56th Criminal Court of Lima considered well-founded the application for habeas corpus and declared invalid the advisory decision of 20 January 2009, because it was insufficiently substantiated.

 

On 11 December 2009 China informed Peru that its Supreme Court had decided not to impose the death penalty if the applicant was extradited and convicted. On 27 January 2010 the Peruvian Supreme Court issued another advisory decision in which it ruled in favour of extradition in view of the Chinese Supreme Court’s decision. Following that decision, on 9 February 2010 the applicant’s representative filed an application for habeas corpus which was declared inadmissible. The representative filed an appeal based on constitutional injury.

 

On 1 May 2011 the Eighth Amendment to the Chinese Criminal Code entered into force annul- ling the death penalty for the smuggling offence in respect of which the applicant’s extradition had been requested. On 24 May 2011 the Peruvian Constitutional Court decided the constitutional appeal and ordered the Executive Branch to refrain from extraditing the applicant considering that the diplomatic assurances offered by China were insufficient to ensure that the death penalty would not be imposed. On 9 June 2011 it issued a further decision clarifying that the diplomatic assurances offered by China were not included in the case file. The Executive Branch has since filed various judicial remedies to clarify the way in which the decision should be executed, all of which have been unsuccessful. A final decision by the Executive Branch regarding the extradition request was still pending at the date of the Inter-American Court’s judgment.

 

Law

 

(a)     Preliminary objection – The State raised the objection of non-exhaustion of domestic remedies, on the grounds that: (i) when the initial petition was lodged, domestic remedies had not been exhausted, and (ii) when adopting its decision on admissibility, the Commission did not take into account that other applications for habeas corpus were pending.

The Inter-American Court rejected the first point, considering that according to Article 46 of the American Convention on Human Rights (ACHR) exhaustion of remedies is required when deciding on the admissibility of the petition and not when it is lodged. On the second point, the Court noted that the application for habeas corpus was not part of the regular extradition proceedings in Peru, and thus need not be exhausted.

(b)     Article 4(1) (right to life) in relation to Article 1(1) (obligation to respect and ensure rights) of the ACHR and Article 14(4) of the Inter-American Convention to Prevent and Punish Torture (ICPPT) (Non- refoulement) – The Court established that States have the obligation not to expel, by extradition, any individual under their jurisdiction when there are substantial grounds for believing that he will face a real, foreseeable and personal risk of suffering treatment contrary to his right to life and the prohibition of torture or cruel, inhuman or degrading treatment. Consequently, when an individual alleges before a State a risk in the event of a return, the competent authorities of that State must, at least, interview him and make a preliminary assessment in order to determine whether or not that risk exists in the event of his being expelled. This implies that certain basic judicial guarantees should be respected as part of the opportunity afforded to the individual to explain the reasons why he should not be expelled and, if the risk is verified, the individual should not be returned to the country where the risk exists.

 

The Court acknowledged that the death penalty had been abolished for one of the crimes for which the applicant was being requested. Thus, there was no real risk for his right to life.

It established that to determine whether there is a risk of torture or other forms of cruel, inhuman or degrading treatment, the following must be examined: (i) the alleged situation of risk in the requesting State, including the relevant conditions in the requesting State as well as the specific circumstances of the applicant, and (ii) any diplomatic assurances provided. Following the case-law of the European Court of Human Rights, the Inter- American Court considered that the quality and reliability of diplomatic assurances should be assessed. The Court determined that the information on which both the Commission and the representative relied in the instant case referred to the general situation of human rights in China. This was deemed to be insufficient by the Court in order to conclude that the applicant’s extradition would expose him to a real, foreseeable and personal risk of being subject to treatment contrary to the prohibition of torture or other cruel, inhuman or degrading treatment.

 

Conclusion: extradition would not constitute violation of Peru’s obligation to ensure his rights to life and to personal integrity (Articles 4 and 5, in relation to Article 1(1) of the ACHR), or the obligation of non-refoulement (Article 13(4) of the ICPPT) (five votes to one).

 

(c)      Articles 8(1) (right to a fair trial) and 25(1) (right to judicial guarantees and judicial protection) in relation to Article 1(1) of the ACHR – In relation to the alleged failure to comply with the Constitutional  Court’s  decision,  the  Inter-American Court considered that Peru had to decide how to proceed with the request to extradite the applicant, bearing in mind that, for the time being, there would be no risk to his rights to life and personal integrity if he was extradited, but that there was a Constitutional Court decision that prima facie could not be amended and was, in principle, binding on the Executive Branch. In addition, the Court took into account the fact that the Executive Branch’s discretionary acts may be subject to sub- sequent constitutional control.

 

Regarding the duration of the extradition proceedings, the Court analysed four elements to determine whether the duration had been reasonable: (i) the complexity of the matter; (ii) the procedural activity of the interested party; (iii) the conduct of the judicial authorities, and (iv) the effects on the legal situation of the person involved in the proceedings. It concluded that the State authorities had not acted with due diligence and in respect of the obligation of promptness required by the applicant’s detention. Thus, the extradition proceedings had exceeded a reasonable time. Concerning the other guarantees of due process, the Court considered that insofar as the applicant had taken part in the judicial stage of the proceedings and retained the possibility of obtaining judicial control of the final decision on extradition, the State had not failed to comply with its obligation to guarantee the applicant’s right to be heard.

 

Conclusion: violation of the guarantee of a reasonable time (Article 8(1) in relation to Article 1(1) of the ACHR – three votes in favour, three against, with deciding vote of the President); no violation of the right to be heard and of the right of defence (Article 8(1) in relation to Article 1(1) – five votes to one); not necessary to issue a ruling on the alleged failure to comply with the right to judicial protection recognised in Article 25 (five votes to one).

 

(d)     Articles 5 (right to personal integrity) and 7 (right to personal liberty), in relation to Article 1(1) of the ACHR – In this case, the holder of the rights whose situation was examined was an alien detained owing to the existence of an international warrant for his arrest and a subsequent extradition request. However, regardless of the reason for his detention, insofar as it relates to a deprivation of liberty executed by a State Party to the Convention, it must be strictly in keeping with the relevant provisions of the ACHR and domestic law.

 

With regard to the right to personal liberty, the Court concluded that: (i) the applicant had been subjected to an arbitrary deprivation of liberty, which had extended excessively; (ii) certain habeas corpus remedies were not effective; and (iii) the State had failed to decide those remedies within a reasonable time.

 

Finally, in relation to the alleged violation of the applicant’s right to personal integrity as a consequence of his deprivation of liberty, the Court concluded that the arguments referred to a “collateral effect of the detention”.

 

Conclusion: violation of Articles 7(1), 7(3), 7(5) and 7(6) in relation to Article 1(1) of the ACHR (five votes to one); no violation of Article 7(2), in relation to Article 1(1) of the ACHR (four votes to two); no violation of Article 7(2) in relation to Article 1(1) of the ACHR (four votes to two); and no violation of Article 5, in relation to Article 1(1) of the ACHR (five votes to one).

 

(e)     Reparations – The Inter-American Court established that the judgment constituted per se a form of reparation and ordered the State to: (i) adopt  as soon as possible the final decision in the ex- tradition proceedings concerning the applicant; (ii) immediately review the applicant’s deprivation of liberty; (iii) publish the judgment and its official summary; and (iv) pay the amount stipulated in the judgment as compensation for pecuniary and non-pecuniary damage and the reimbursement of costs and expenses.