'Facial recognition technology, democracy and human rights' by Francesca Palmiotto and Natalia Menéndez González in (2023) 50 Computer Law & Security Review comments
On 4 July 2023, the Third Section of the European Court of Human Rights (ECtHR) delivered the first judgment on the compatibility of facial recognition technology with human rights in Glukhin v. Russia. The case concerned the use of facial recognition technology (FRT) against Mr Glukhin following his solo demonstration in the Moscow underground. The Court unanimously found a violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Regarding FRT, the Court concluded that the use of highly intrusive technology is incompatible with the ideals and values of a democratic society governed by the rule of law. This case note analyses the judgment and shows its relevance in the current regulatory debate on Artificial Intelligence (AI) systems in Europe. Notwithstanding the importance of this decision, we argue that the Court has left crucial questions unanswered.
... On 23 August, Mr Glukhin travelled on the Moscow underground with a life-size cardboard of Mr Kotov, a political activist who was arrested and charged some days earlier, holding a banner saying: “You must be f**king kidding me. I'm Konstantin Kotov. I'm facing up to five years [in prison] for peaceful protests”. The applicant's solo demonstration was not interrupted by the police. Only seven days later, on 30 August 2019, Mr Gluckhin was arrested at an underground station and charged with an administrative offence for violating established procedures for the conduct of public events. The police were able to identify and locate him thanks to facial recognition technology.
More specifically, the Russian police anti-extremist unit used FRT in two ways. Firstly, they took screenshots from a public Telegram channel showing videos of the applicant holding the cardboard figure of Mr Kotov. They then obtained video recordings from CCTV cameras installed at two underground stations. Using “post-remote” FRT, the police identified the applicant and established his home address. Secondly, after the police went to the applicant's home and discovered that he was not there, they used “live” FRT to identify the real-time location of the applicant in Moscow. The applicant was arrested on the same day at an underground station. Although the Russian Government never explicitly admitted their use of FRT, the Court accepted, in light of the particular circumstances of the case, that FRT was used.
After the arrest, Mr Glukhin was charged and convicted in the administrative offence proceedings for failure to notify the authorities of his solo demonstration. Under Russian law, a notification for solo demonstrations is required where the demonstrator intends to use a “quickly (de)assembled object”, i.e., the life-size cardboard of Mr Kotov. In the administrative proceedings, the judicial authorities relied on evidence provided by FRT, which identified the applicant from the screenshots of the Telegram channel and the video recordings from the surveillance cameras installed in the Moscow underground trains and stations.
The applicant appealed, complaining that the activities performed to identify him had been unlawful and the evidence obtained was, therefore, inadmissible. He also submitted that his conviction for a peaceful demonstration breached his right to freedom of expression, as it had not caused any risk to public order or the life or health of others. The Moscow City Court upheld the conviction. After exhausting all internal remedies, Mr Glukhin lodged an application with the ECtHR in January 2020. The applicant complained that his administrative conviction and the use of FRT had breached his rights under Articles 8, 10 and 11 of the ECHR. He also complained that the proceeding against him was unfair, relying on Article 6 of the ECHR.
