Judgement 11519/20

Applicant name GLUKHIN
Applicant type 1
Number of applicants Natural person
Application no. 11519/20 
Date 04/07/2023 
Judges Pere Pastor Vilanova, President,
 Jolien Schukking,
 Yonko Grozev,
 Georgios A. Serghides,
 Peeter Roosma,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Legal basis
Type of privacy Informational privacy
Keywords Facial recognition; police; peacefull demonstration
Facts of the caseThe case concerns the applicant’s administrative conviction for his failure to notify the authorities of his intention to hold a solo demonstration. During the investigation the police used facial recognition technology to process the applicant’s personal data. The applicant complains of a violation of Articles 6, 8 and 10.
Analysis1. As to Article 10 ECHR, the ECtHR finds that there clearly had been an interference and then points out that the legal basis on which applicant was arrested was that he carried a “quickly (de)assembled object”. At the same time, the Court points out, the law contained no criteria allowing a person to foresee what kind of objects would be covered by that provision. Having regard to the nature of the applicant’s solo demonstration, and in the absence of either further clarifications concerning the scope and manner of application of the relevant provisions by higher Russian courts or any detailed analysis by the domestic courts in the applicant’s specific case, the Court finds that there is reason to doubt that the manner of application of the impugned legal provisions was sufficiently foreseeable to meet the quality of law requirement in the case at hand. Interestingly, the Court subsequently adopts a double even if approach and suggests that even if the interference had been in accordance with the law and even if the measure pursued the legitimate aims of “the prevention of disorder” and “the protection of the rights of others”, the interference was not necessary in a democratic society, because the authorities did not show the requisite degree of tolerance towards the applicant’s peaceful solo demonstration.
2. As to the use of facial recognition technology under Article 8 ECHR, the ECtHR finds that during routine monitoring of the Internet the police discovered photographs and a video of the applicant holding a solo demonstration published on a public Telegram channel. They made screenshots of the Telegram channel, stored them and allegedly applied facial recognition technology to them to identify the applicant and to locate and arrest him. Allegedly, because the government wouldn’t reply to this accusation of the use of facial recognition software and the police wasn’t required to keep records of their use of any such technology. The government, however, the Court feels, did implicitly acknowledge its use, inter alia, when it referred to the legal basis for the use of this technology. That is why the Court accepts that this technology was used and that there had been an interference with applicant’s right to privacy. As to the legitimacy of the interference, the Court has strong doubts that the domestic legal provisions meet the “quality of law” requirement because the domestic law permits the processing of biometric personal data “in connection with the administration of justice” which is widely formulated and because processing of biometric personal data – including with the aid of facial recognition technology – is allowed in connection with any judicial proceedings. Yet the Court does not give a final conclusion on this point nor on the matter of whether a legitimate interest was served, to which the ECtHR merely remarks that it will proceed on the assumption that the contested measures pursued the legitimate aim of the prevention of crime. As to the proportionality of the interference, the Court underlines that obviously fighting crime is an important task of the government and that new technologies, including facial recognition, may be indispensable in that fight. But live facial recognition is particularly intrusive in terms of privacy. The personal data processed contained information about the applicant’s participation in a peaceful protest and therefore revealed his political opinion. They accordingly fell in the special categories of sensitive data attracting a heightened level of protection. Not only is the use of facial recognition in this case disproportionate in itself, the Court also considers that the use of highly intrusive facial recognition technology to identify and arrest participants of peaceful protest actions could have a chilling effect in regard of the rights to freedom of expression and assembly.
Other Article violation? Violation 10 ECHR; no violation 6 ECHR
Damage awardedThat the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 6,400 (six thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
Documents Judgment