CEDH · CASELAW;CLIN;ENG — 4 juillet 2023

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Russia - 11519/20 Judgment 4.7.2023 [Section III] Article 8 Article 8-1 Respect for private life Unjustified processing of applicant’s personal biometric data by using highly intrusive facial recognition technology in administrative offence proceedings to identify, locate and arrest him: violation Article 10 Article 10-1 Freedom of expression Unjustified administrative offence conviction of a peaceful solo demonstrator, using a life-size cardboard figure of a political activist with a banner, for failure to submit prior notification: violation 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 Mr Konstantin Kotov, a political activist whose case had attracted a great deal of media attention and caused a public outcry, holding a banner stating: “You must be f**king kidding me. I’m Konstantin Kotov. I’m facing up to five years [in prison] under [Article] 212.1 for peaceful protests.” 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 in 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. The screenshots of the social-media site and of the video-recordings from the CCTV surveillance cameras were used in evidence against him. He appealed unsuccessfully. Law – Jurisdiction and correspondence with the respondent Government – As the facts giving rise to the alleged violations of the Convention had occurred prior to 16   September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application. The respondent Government’s abstention from further participation in the proceedings did not release them from the duty to cooperate with the Court and did not prevent the Court from continuing with the examination of applications where it retained jurisdiction. The Court might draw such inferences as it deemed appropriate from a party’s failure or refusal to participate effectively in the proceedings (Rule   44C of the Rules of Court). The Court also observed that it continued to use the electronic secured Government website as the means of communication with the authorities of the respondent State and to respect the adversarial nature of the proceedings before it. Article 10: Given the nature and the context of the applicant’s conduct, the Court considered that through his actions the applicant had sought to express his opinion on a matter of public interest. There was little scope for restricting that right under Article 10 § 2. His escorting to the police station, administrative 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. Having regard to the nature of the applicant’s solo demonstration, and in the absence of 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 case, there was reason to doubt that the manner of application of the impugned legal provisions had been sufficiently foreseeable to meet the quality requirement in the case. However, even assuming that the interference had been in accordance with the law and pursued the legitimate aims of “the prevention of disorder” and “the protection of the rights of others”, it had not been “necessary in a democratic society”. The applicant’s solo demonstration had been carried out in an indisputably peaceful and non-disruptive manner and had not caused any danger to public order to safety. Further, the offence of which he had been convicted had consisted merely of a failure to notify the authorities of his solo demonstration and had included no further incriminating element concerning any reprehensible act. However, the authorities had not shown the requisite degree of tolerance towards his peaceful solo demonstration. They had not taken the above elements into account and had not assessed whether the applicant’s use of a cardboard figure holding a banner had constituted an expression of his views. The only relevant consideration - the need to punish unlawful conduct- was not a sufficient consideration in this context in the absence of any aggravating elements. Thus, the courts had failed to adduce “relevant or sufficient reasons” to justify the interference with the applicant’s right to freedom of expression. Conclusion : violation (unanimously). Article 8: (a) Existence of an interference – 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 had not contained any information permitting the identification of the applicant, he had been identified by the police within less than two 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. In the light of all the above, the Court accepted in the circumstances of the case that facial recognition technology had been used. It had 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. Accordingly, the processing of the applicant’s personal data in the administrative offence proceedings against him - including the use of facial recognition technology, to identify him and later locate and arrest him - had amounted to an interference with his right to respect for his private life. (b) Justification for the interference – Although the interference had had a legal basis in the domestic law, the Court had strong doubts whether the “quality of law” requirement had been met. In particular, the 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, such as the authorisation procedures, the procedures to be followed for examining, using and storing the data obtained, supervisory control mechanisms and available remedies. It was essential in the context of implementing facial recognition technology to have detailed rules governing the scope and application of measures as well as strong safeguards against the risk of abuse and arbitrariness. The need for safeguards would be all the greater where the use of live facial recognition technology was concerned. Proceeding on the assumption that the contested measures had pursued the legitimate aim of the prevention of crime, the Court found that the measures taken against the applicant had been particularly intrusive, especially in so far as live facial recognition technology was concerned. A high level of justification was therefore 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 had contained information about the applicant’s participation in a peaceful protest and therefore had 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 in regard of the rights to freedom of expression and assembly. In such circumstances, the processing of the applicant’s personal 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”. Conclusion : violation (unanimously). Article 41: EUR 9,800 in respect of non-pecuniary damage. (See also S. and Marper v. the United Kingdom [GC], 30562/04 and 30566/04, 4 December 2008, Legal Summary ; Novikova and Others v. Russia , 25501/07 et al., 26 April 2016, Legal Summary ; Gaughrann v. the United Kingdom, 45245/15, 13 February 2020, Legal Summary ; P.N. v. Germany , 74440/17, 11 June 2020, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .