GLUKHIN v. RUSSIA JUDGMENT
is whether the processing of the applicant’s personal data was justified under
Article 8 § 2 of the Convention in the present case (compare S. and Marper,
cited above, §§ 105-06).
86. In determining whether the processing of the applicant’s personal data
was “necessary in a democratic society”, the Court will first assess the level
of the actual interference with the right to respect for private life (see P.N.
v. Germany, cited above, §§ 73 and 84). It notes that the police collected and
stored the applicant’s digital images and used them to extract and process the
applicant’s biometric personal data with the aid of facial recognition
technology: 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. The Court considers these measures
to be particularly intrusive, especially in so far as live facial recognition
technology is concerned (see paragraph 37 above). A high level of
justification is therefore required in order for them to be considered
“necessary in a democratic society”, with the highest level of justification
required for the use of live facial recognition technology. Moreover, the
personal data processed contained information about the applicant’s
participation in a peaceful protest and therefore revealed his political opinion.
They accordingly fell in the special categories of sensitive data attracting a
heightened level of protection (see paragraph 76 above).
87. In the assessment of the “necessity in a democratic society” of the
processing of personal data in the context of investigations, the nature and
gravity of the offences in question is one of the elements to be taken into
account (see, mutatis mutandis, P.N. v. Germany, cited above, § 72). The
domestic law permits the processing of biometric personal data in connection
with the investigation and prosecution of any offence, irrespective of its
nature and gravity.
88. The Court observes that the applicant was prosecuted for a minor
offence consisting of holding a solo demonstration without a prior
notification – an offence classified as administrative rather than criminal
under the domestic law. He was never accused of committing any
reprehensible acts during his demonstration, such as the obstruction of traffic,
damage to property or acts of violence. It was never claimed that his actions
presented any danger to public order or transport safety. The Court has
already found that the administrative-offence proceedings against the
applicant breached his right to freedom of expression (see paragraph 57
above). It considers that 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.
89. In such circumstances, the use of facial recognition technology to
identify the applicant from the photographs and the video published on
Telegram – and a fortiori the use of live facial recognition technology to
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