The IACHR found a violation of the requirements of paragraph 1 of Article 7, paragraph 3 of Article 7, paragraph 5 of Article 7 and paragraph 6 of Article 7 in conjunction with paragraph 1 of Article 1 of the ACHR.

Заголовок: The IACHR found a violation of the requirements of paragraph 1 of Article 7, paragraph 3 of Article 7, parag Сведения: 2020-06-22 05:15:26

The ruling of the Inter-American Court of Human Rights of June 30, 2015 in the case of Wong Ho Wing v. Peru (Series C, No. 297).

The applicant was assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. Then the complaint was communicated to Peru.

In the case, the complaint in the case of the obligation of States parties to the American Convention in the context of extradition proceedings was successfully considered.

Obligations of States Parties to the American Convention in the context of extradition proceedings.


Circumstances of the case


The applicant was a citizen of the People's Republic of China, who was wanted by the Hong Kong (China) authorities in connection with smuggling of goods, money laundering and bribery. On October 27, 2008, Peruvian authorities detained him at Lima Airport in accordance with Interpol’s “red alert”. He was subjected to “temporary or pre-extradition detention" before being placed under house arrest on March 10, 2014.

On November 14, 2008, Peru received an extradition request from China. A public hearing was held on 10 December 2008, during which the applicant and his representative reported that the death penalty was provided for for smuggling. On January 20, 2009, the second interim chamber of the Supreme Court of Peru issued the first advisory decision in extradition proceedings, declaring the extradition request admissible in relation to crimes of tax evasion or smuggling and bribery. Following this decision, on 26 January 2009, the applicant's brother filed a request for the issuance of a habeas corpus order. On April 24, 2009, the 56th Criminal Court of Lima declared the request for the issuance of habeas corpus to be justified and invalidated the advisory decision of January 20, 2009 because it was not sufficiently motivated.

The Habeas Corpus order, one of the most important institutions of justice in the Anglo-Saxon system of law, is issued by a court to verify the legality and validity of a person’s imprisonment.

On December 11, 2009, China informed Peru that its Supreme Court had decided not to apply the death penalty if the applicant was extradited and convicted. On January 27, 2010, the Peruvian Supreme Court issued another advisory decision in which it spoke out in favor of extradition, given the decision of the Chinese Supreme Court. Following this decision, on 9 February 2010, the applicant's representative filed a request for the issuance of a habeas corpus order, which was declared inadmissible. The representative filed a complaint, citing a violation of constitutional law.

On May 1, 2011, the eighth amendment to the Chinese Penal Code entered into force, which abolished the death penalty for smuggling, due to which the applicant’s extradition was requested. On May 24, 2011, the Peruvian Constitutional Court examined the complaint through constitutional proceedings and ordered the executive authorities to refrain from extraditing the applicant, considering that the diplomatic guarantees offered by China were insufficient to ensure that the death penalty was not applied. On June 9, 2011, he issued an additional decision clarifying that the diplomatic guarantees offered by China were missing from the case file. After that, the executive authorities used various judicial remedies to clarify the method of execution of the decision, which did not bring any result. The final decision of the executive authorities on the request for extradition is still not taken at the date of the Inter-American Court ruling.


RIGHT


(a) Preliminary objection. The respondent Government objected to the failure to exhaust domestic remedies on the grounds that (i) at the time of the initial complaint, domestic remedies had not been exhausted, and (ii) in deciding on the admissibility, the Commission had not taken into account that pending other requests for the issuance of an order habeas corpus.

The Inter-American court rejected the first argument, considering that, in accordance with Article 46 of the American Convention on Human Rights (hereinafter - ACHR), exhaustion of domestic remedies is required when a decision is made on the admissibility of the complaint and when it is submitted. As regards the second argument, the court noted that the request to issue a habeas corpus order was part of the ordinary extradition proceedings in Peru and therefore did not require the exhaustion of domestic remedies.

(b) Article 4, paragraph 1 (right to life) in connection with Article 1, paragraph 1 (obligation to respect and ensure rights) of the ACHR and Article 14, paragraph 4, of the Inter-American Convention for the Prevention and Punishment of Torture (ICNP) (prohibition of forced return). The court found that states have an obligation not to extradite, through extradition, a person under their jurisdiction if there is good reason to believe that he would face a real, predictable and personal risk of being subjected to treatment contrary to his right to life and the prohibition of torture or cruel, inhuman or degrading treatment. Therefore, when a person declares to the state authorities that there is a threat in case of return, the competent authorities of that state are obliged to at least interview him and carry out a preliminary assessment to determine whether this threat exists if he is expelled. This implies that when giving a person the opportunity to explain the reasons why he should not be expelled, certain basic judicial guarantees must be respected, and if the threat is confirmed, the person should not be returned to the country where the threat exists.

The court found that for one of the crimes that required the applicant’s extradition, the death penalty was abolished. Thus, there was no real threat to his right to life.

It has been established that in order to determine whether there was a risk of torture or other forms of cruel, inhuman or degrading treatment, the following should be considered: (i) the alleged threatening situation in the requesting state, including the relevant conditions in the requesting state, as well as the specific circumstances of the applicant, and (ii) diplomatic guarantees provided. Based on the case-law of the European Court of Human Rights, the Inter-American Court found that the quality of the reliability of diplomatic guarantees should be assessed. The Inter-American Court found that the information referred to in the present case by both the Commission and the representative referred to the general human rights situation in China. This was considered insufficient by the Inter-American Court to conclude that the applicant’s extradition would entail for him a real, predictable and personal risk of being subjected to treatment contrary to the prohibition of torture or other cruel, inhuman or degrading treatment.


OUTPUT


Extradition would not constitute a violation of Peru’s obligation to provide the applicant with the right to life and security of person (arts. 4 and 5 in conjunction with article 1, paragraph 1 of the ACCHR) or the obligation to comply with the prohibition of forced return (article 13, paragraph 4, of the ICNL) (voted by five in favor and one - "against").

(c) Section 8, paragraph 1 (right to a fair trial) and Section 25, paragraph 1 (right to judicial guarantees and judicial protection) in connection with Section 1, paragraph 1 of the ACCHR. With regard to the alleged failure to comply with the decision of the Constitutional Court, the Inter-American Court found that Peru should have decided on how the consideration of the applicant’s extradition request should be continued, given that at the moment there was no threat to his rights to life and security of person in case of extradition, but that there was a decision of the Constitutional Court, which at first glance could not be changed and, in principle, was binding on the executive authorities. In addition, the Inter-American Court took into account the fact that the actions of the executive authorities, which they committed at their discretion, could be subject to subsequent constitutional review.

Regarding the length of the extradition proceedings, the Inter-American Court analyzed four elements to determine whether the length was reasonable: (i) the complexity of the case, (ii) the procedural activity of the interested party, (iii) the conduct of the judiciary, and (iv) the consequences for the legal status of the person involved in the case. He concluded that the State authorities had not acted with due diligence and had not fulfilled the urgency obligation arising from the applicant's report. So, extradition proceedings exceeded a reasonable time. As regards other guarantees of due process, the Inter-American Court concluded that, since the applicant had participated in the judicial stage of the proceedings and retained the opportunity to resort to judicial review of the final decision on extradition, the State had not violated its obligation to guarantee the applicant's right to be heard.


OUTPUT

 

The case has violated a reasonable warranty (clause 1 of article 8 in conjunction with clause 1 of article 1 of the ACHR, voted with three votes in favor and three against, with the decisive vote of the Chair), there is no violation of the right to be heard and the right to defense ( article 8, paragraph 1, in conjunction with article 1, paragraph 1, rendered by five votes in favor and one against,) there is no need to resolve the issue of alleged non-compliance with the right to judicial protection provided for in article 25 (rendered by five votes in favor and one - "against").

(d) Article 5 (right to personal integrity) and 7 (right to personal freedom) in connection with paragraph 1 of article 1 of the ACCHR. In the present case, the holder of the rights, the situation of which is being considered, was a foreigner detained in connection with the presence of an international arrest warrant and the subsequent extradition request.

However, despite the grounds for detention, since it is a deprivation of liberty carried out by a State party to the Convention, it must strictly comply with the applicable provisions of the AHRC and national legislation.

As regards the right to personal liberty, the Inter-American Court concluded that (i) the applicant was subjected to arbitrary deprivation of liberty which was excessive, (ii) certain remedies of habeas corpus were not effective, and (iii) the state avoided making decisions in communication with these remedies within a reasonable time.

Ultimately, in relation to the alleged violation of the applicant's right to security of person as a result of the deprivation of liberty, the Inter-American Court concluded that the arguments concerned a “side effect of the detention”.


OUTPUT


Violation of paragraph 1 of Article 7, paragraph 3 of Article 7, paragraph 5 of Article 7 and paragraph 6 of Article 7 in conjunction with paragraph 1 of Article 1 of the ACHR (handed down by five votes in favor and one against), there is no violation of paragraph 2 of Article 7 in there is no violation of clause 2 of article 7 in conjunction with clause 1 of article 1 of the AHRC (rendered by four votes in favor and two against) , and there is no violation of Article 5 in conjunction with paragraph 1 of Article 1 of the AHRC (delivered by five votes in favor and one against).

(e) Compensation. The Inter-American Court decided that the ruling as such constitutes a form of compensation, and ordered the state (i) to take the final decision as soon as possible in the extradition proceedings concerning the applicant, (ii) immediately review the issue of the applicant’s deprivation of liberty, (iii) publish the ruling and his official summary and (iv) to pay the amount stipulated by the decree as compensation for pecuniary and non-pecuniary damage and reimbursement of legal expenses and expenses.

 

 

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