Case of Glukhin v. Russia, (Application no. 11519/20)

A selection of key paragraphs can be found below the judgment.

56. The applicant’s solo demonstration was carried out in an indisputably peaceful and non-disruptive manner. The offence of which he was convicted consisted merely of a failure to notify the authorities of his solo demonstration and included no further incriminating element concerning any reprehensible act, such as the obstruction of traffic, damage to property or acts of violence (contrast Kudrevičius and Others, cited above, §§ 164-75). It was not established that the applicant’s actions caused any major disruption to ordinary life and other activities to a degree exceeding that which was normal or inevitable in the circumstances. Nor was it claimed that his actions had presented any danger to public order or transport safety. However, the authorities did not show the requisite degree of tolerance towards the applicant’s peaceful solo demonstration. They did not take the above relevant elements into account and did not assess whether the applicant’s use of a cardboard figure holding a banner had constituted an expression of his views. The only relevant consideration was the need to punish unlawful conduct. This is not a sufficient consideration in this context, in terms of Article 10 of the Convention, in the absence of any aggravating elements (see Novikova and Others, cited above, § 199). Thus, the courts failed to adduce “relevant or sufficient reasons” to justify the interference with the applicant’s right to freedom of expression.

57. There has accordingly been a violation of Article 10 of the Convention.

72. Against this background, and taking into account the difficulty for the applicant to prove his allegations because the domestic law did not provide for an official record or notification of the use of facial recognition technology, the absence of any other explanation for the rapid identification of the applicant, and the implicit acknowledgment by the Government of the use of live facial recognition technology, the Court accepts in the particular circumstances of the case that facial recognition technology was used. The Court has previously found that the storage of photographs by the police, coupled with a possibility of applying facial recognition techniques to them, constituted an interference with the right to private life (see Gaughran v. the United Kingdom, no. 45245/15, §§ 69-70, 13 February 2020).

73. The Court concludes that the processing of the applicant’s personal data in the framework of the administrative offence proceedings against him, including the use of facial recognition technology – first, to identify him from the photographs and the video published on Telegram and, secondly, to locate and arrest him later while he was travelling on the Moscow underground – amounted to an interference with his right to respect for his private life within the meaning of Article 8 § 1 of the Convention.

90. In the light of all the above considerations the Court concludes that the use of highly intrusive facial recognition technology in the context of the applicant exercising his Convention right to freedom of expression is incompatible with the ideals and values of a democratic society governed by the rule of law, which the Convention was designed to maintain and promote. The processing of the applicant’s personal data using facial recognition technology in the framework of administrative offence proceedings – first, 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 – cannot be regarded as “necessary in a democratic society”.

91. There has accordingly been a violation of Article 8 of the Convention.