Facial Recognition Before the European Court of Human Rights

ABSTRACT This article holistically analyses the European Court of Human Rights (ECtHR) case law on Article 8 of the European Convention of Human Rights (ECHR) to show how the Court’s jurisprudence significantly delimits the use of facial recognition technology (FRT) by law enforcement authorities. Its core aim is to distil principles from established case law that can set normative guardrails for this technology. The original methodological approach lies in conceptualising FRT as an “Architecture of Surveillance” comprising a threefold interference with the rights enshrined in Article 8 of the ECHR. 1) The collection of facial images as input data, the creation of police databases containing facial images and the use of the automated identification match for law enforcement purposes. After reviewing the case law following this tripartite structure, the paper derives the following core principles from the ECtHR jurisprudence. The principle of extrema ratio, which posits that FRT can be only used as a measure of last resort; the principle of targeted suspicion, which requires the use of facial recognition to be grounded in concrete, verifiable facts linking an individual to a previously committed crime; and the principle of selective legitimacy, which delimits the use of FRT for identifying limited categories of data subjects, namely only suspects and convicted individuals of serious offences. Notably, these principles apply to both “real-time” and “post” remote uses of facial recognition.

KEYWORDS Facial Recognition - Human Rights - Artificial Intelligence - ECHR - European Court of Human Rights

TABLE OF CONTENTS 1. Introduction. – 2. The Architecture of Surveillance. – 2.1. The Technology. – 2.2. A Threefold Interference. – 3. The Collection of the Input Data. – 3.1. Data collection through video cameras and secret surveillance. – 3.2. Data collection through investigative operations. – 4. The Creation of the Database. – 4.1. Nature of data stored and collected. – 4.2. Duration of the retention period. – 5. The Use and Purpose of the Output. – 5.1. Investigations and preemptive surveillance. - 5.2. Evidence in legal proceedings. – 6. Conclusions