On 24 March, Deputy Senior District Judge Ikram discharged the extradition of AB to Armenia on the basis that if extradited there was a real risk of breach of his rights under Article 3 and Article 6 of the European Convention of Human Rights. The Judge heard and accepted arguments that there was a real risk that AB, a Bisexual man, would be subject to inhuman or degrading treatment in prison in Armenia owing specifically to the treatment he would likely receive because of his sexual orientation.

This case can properly be heralded as a victory for the protection of LGBTQ+ rights in the context of extradition.

Ben Keith leading Danielle Barden represented AB, instructed by Thomas Ashbey at Lloyds PR solicitors. Sian Priory provides her commentary on the judicial treatment of this unusual case.

AB’s extradition to Armenia was sought under a request under Part 2 of the Extradition Act 2003 (“the Act”) in order to stand trial for offences of theft and money laundering in the context of an organised crime group. The offences date back to 2008, however, the Judge was not persuaded that the passage of time was such as to merit discharge under section 82. Whilst the Court did not have the benefit of hearing live evidence from AB, the Judge was satisfied that his sexual orientation was sufficiently established in fact by reference to other evidence, including a website which suggests that AB once worked as a male sex worker.

The Court heard from no less than three Defence experts on the issue of treatment of LGBTQ+ people in prison, with specific reference to the likely conditions for AB at Armavir prison. The experts cumulatively provided the following evidence;

  • LGBTQ+ people were at risk of being victims of sexual harassment in prison and usually tasked with humiliating work
  • Sexual violence in prison is common and often facilitated by prison staff
  • LGBTQ+ people were often held in solitary confinement either as punishment or as a means to protect them from the general population
  • LGBTQ+ people are wrongly refused bail
  • LGBTQ+ people are the lowest in the prison hierarchy, known as “untouchables” and “outcasts”
  • Food for LGBTQ+ prisoners is prepared and served separately from the general population
  • AB would be put in closed conditions while being assessed after transfer

In particular, the Court heard from Dr Marzena Ksel who had inspected Armavir prison herself. In her evidence, she provided that “the segregation of LGBT prisoners from the rest of the population is factual and it is well-known phenomena for penitentiary institutions managed not exclusively by prison administration. The concept of LGBT prisoners is that they are the lowest level in the prison hierarchy, named as “untouchable”…[and] will be “humiliated” and expelled from the upper level of this structure…The material conditions in Armavir prison were systematically deteriorating.” The Judge considered that her credentials and direct experience allowed him to put significant weight on her evidence.

The Armenian Government responded to the assertions in the experts’ evidence by stating that this view of LGBTQ+ people in the prison system was outdated and that a ‘comprehensive action plan’ had been launched to address the issues raised. The Government maintains that since 2019 there has been no registered case of discrimination against LGBTQ+ community members in prison.

The Judge acknowledged that his starting point in analysing the matter must be that Armenia is a signatory to the ECHR and a member of the Council of Europe and so made a commitment to ensuring convention rights are afforded to its citizens. It follows that there is a presumption that they will not violate AB’s human rights. However, the Judge was satisfied that, in this instance, he had heard compelling and reliable evidence to the contrary. The Judge noted that he was “struck by the professional experience of the witnesses called…they had a very high level of experience within the prison system.” He was ultimately persuaded that conditions were such as to amount to a real risk of breach of Article 3, finding by way of fact that;

“prions were marked by poor sanitation, inadequate medical care, and predation by hierarchical criminal strictures…and in some cases they were harsh and potentially life-threatening. Human Rights observers and the PMG continue to express concern regarding the physical conditions of Armavir penitentiary which did not have air ventilation or cooling systems which allowed recorded cell temperatures as high as 113 degrees Fahrenheit in past summer”

The Judge gave due consideration to the Government’s response but was not persuaded that the issues had been sufficiently addressed, commenting;

“It is clear that the Government is aware of deep-rooted cultural issues as regards LGBT people and also aware of prison conditions generally…I have considered much of their response was aspirational rather than the reality on the ground.”

The Judge was similarly persuaded that there was a real risk that AB would not have the benefit of a fair trial in Armenia, although this argument was not advanced on the basis of his sexual orientation. The Judge noted that certain aspects of the evidence in relation to this point were ‘very troubling’, commenting;

“it appears to me that Armenia is a country which is in transition. There are positives but a judiciary which does not yet exhibit independence and impartiality, and where corruption remains a major concern, is fundamentally unable to guarantee a fair trial process.”

It is not the first time that the prospect of persecution because of sexual orientation has led to extradition being discharged on Article 3 grounds, but the instances are few and far between. Other examples include the successfully challenged extradition of a gay British man to the UAE in 2015 and of a gay Kurdish man to Turkey in 2017. The relative scarcity of challenges on this basis makes it all the more important to acknowledge the victory as members of a profession working to uphold these fundamental principles.

It is however equally important to acknowledge that there remain places of extreme danger in the world for members of the LGBTQ+ community and that this must always be properly considered in the context of challenging extradition.