GLUKHIN v. RUSSIA JUDGMENT
III. EUROPEAN UNION
38. Directive (EU) 2016/680 of the European Parliament and of the
Council of 27 April 2016 on the protection of natural persons with regard to
the processing of personal data by competent authorities for the purposes of
the prevention, investigation, detection or prosecution of criminal offences or
the execution of criminal penalties, and on the free movement of such data
states, among others:
“Article 10 Processing of special categories of personal data
Processing of personal data revealing racial or ethnic origin, political opinions,
religious or philosophical beliefs, or trade union membership, and the processing of
genetic data, biometric data for the purpose of uniquely identifying a natural person,
data concerning health or data concerning a natural person’s sex life or sexual
orientation shall be allowed only where strictly necessary, subject to appropriate
safeguards for the rights and freedoms of the data subject, and only:
(a) where authorised by Union or Member State law;
(b) to protect the vital interests of the data subject or of another natural person; or
(c) where such processing relates to data which are manifestly made public by the
data subject.”
39. Guidelines 05/2022 on the use of facial recognition technology in the
area of law enforcement of 26 April 2023 by the European Data Protection
Board provide as follows (footnotes omitted):
“36. The processing of biometric data under all circumstances constitutes a serious
interference in itself. This does not depend on the outcome, e.g. a positive matching.
The processing constitutes an interference even if the biometric template is immediately
deleted after the matching against a police database results in a no-hit ...
43. Article 52(1) of the Charter sets the requirement of a specific legal basis. This
legal basis must be sufficiently clear in its terms to give citizens an adequate indication
of the conditions and circumstances in which authorities are empowered to resort to any
measures of collection of data and secret surveillance. It must indicate with reasonable
clarity the scope and manner of exercise of the relevant discretion conferred on the
public authorities so as to ensure individuals the minimum degree of protection as
entitled under the rule of law in a democratic society. Moreover, lawfulness requires
adequate safeguards to ensure that in particular an individual’s right under Article 8 of
the Charter is respected. These principles also apply to the processing of personal data
for purposes of evaluating, training and further developing of FRT [facial recognition
technology] systems.
44. Given that biometric data when processed for the purpose of uniquely identifying
a natural person constitute special categories of data listed in Article 10 LED [the Data
Protection Law Enforcement Directive, cited in paragraph 38 above], the different
applications of FRT in most cases would require a dedicated law precisely describing
the application and the conditions for its use. This encompasses in particular the types
of crime and, where applicable, the appropriate threshold of severity of these crimes, in
order to, among other things, effectively exclude petty crime ...
51. According to the CJEU’s settled case-law, derogations and limitations in relation
to the protection of personal data must apply only in so far as is strictly necessary. This
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