Euroopa Inimõiguste Kohus
04.07.2023
Facts
During routine monitoring of the internet, the police discovered photographs and a video of the applicant holding a solo demonstration in the Moscow underground published on a public Telegram channel. The applicant was holding a life-size cardboard figure of a political activist whose case had attracted a great deal of media attention and caused a public outcry. According to the applicant, the police used facial recognition technology to identify him from screenshots of the channel, collected video recordings from closed-circuit television (CCTV) surveillance cameras installed in stations of the Moscow underground through which he had transited and, several days later, used live facial technology to locate and arrest him while he was travelling in the underground.
The screenshots of the Telegram channel and of the video recordings from the CCTV surveillance cameras were used as evidence in administrative offence proceedings against the applicant. He was convicted for failure to notify the authorities of his intention to hold a solo demonstration using a “quickly (de)assembled object” and fined. He appealed unsuccessfully.
Complaint
The applicant complained that the administrative offence proceedings against him had breached his rights under Articles 10 and 11 of the Convention.
Court’s ruling
The Court noted that the applicant’s escorting to the police station, arrest and conviction for an administrative offence had constituted an interference with his right to freedom of expression. The provision on “quickly (de)assembled objects” contained no criteria allowing a person to foresee what kind of objects could be covered by that provision. The courts had failed to adduce “relevant or sufficient reasons” to justify the interference with the applicant’s right to freedom of expression and thus a violation of Article 10 was found.
The Court was mindful of the difficulty the applicant had faced in proving his allegations that facial recognition technology had been used in his case. Domestic legislation did not require the police to make a record of their use of facial recognition technology or to give the person concerned access to any such record, either automatically or upon request describing the practice of using such technology without making any official record. Although the photographs and the video published on Telegram did not contain any information permitting the identification of the applicant, he had been identified by the police within less than 2 days. No explanations had been given as to the measures used to identify the applicant so rapidly. Nor had the Government explicitly denied the use of facial recognition technology but had rather implicitly acknowledged its use.
Although the interference had a legal basis in domestic law, the Court had doubts whether the “quality of law” requirement had been met. Domestic law did not contain any limitations on the nature of situations which might give rise to the use of facial recognition technology, the intended purposes, the categories of people who might be targeted, or on processing of sensitive personal data. Further, the Government had not referred to any procedural safeguards accompanying the use of facial recognition technology in Russia.
The Court found that the measures taken against the applicant had been particularly intrusive, especially live facial recognition technology. A high level of justification was required for them to be considered “necessary in a democratic society”, with the highest level of justification required for the use of such technology. Moreover, the personal data processed contained information about the applicant’s participation in a peaceful protest and therefore revealed his political opinion. It thus fell in the special categories of sensitive data attracting a heightened level of protection.
The domestic law permitted the processing of biometric personal data in connection with the investigation and prosecution of any offence, irrespective of its nature and gravity. The applicant had been prosecuted for a minor administrative offence which had not presented any danger to public order or transport safety. He had not been accused of committing any reprehensible act during his demonstration. The use of highly intrusive facial recognition technology to identify and arrest participants of peaceful protest actions could have a chilling effect regarding the rights to freedom of expression and assembly.
In such circumstances, the processing of the applicant’s data using facial recognition technology in the framework of the administrative proceedings - firstly, to identify him from the photographs and the video published on Telegram – and, secondly, to locate and arrest him while he was travelling on the Moscow underground – had not corresponded to a “pressing social need” and could not be regarded as “necessary in a democratic society”. Thus, the Court found a violation of Article 8.