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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.
This Article addresses the pressing issues surrounding the use of automated systems in public decision-making, specifically focusing on migration, asylum, and mobility. Drawing on empirical data, this Article examines the potential and limitations of the General Data Protection Regulation and the Artificial Intelligence Act in effectively addressing the challenges posed by automated decision-making (ADM). The Article argues that the current legal definitions and categorizations of ADM fail to capture the complexity and diversity of real-life applications where automated systems assist human decision-makers rather than replace them entirely. To bridge the gap between ADM in law and practice, this Article proposes to move beyond the concept of “automated decisions” and complement the legal protection in the GDPR and AI Act with a taxonomy that can inform a fundamental rights analysis. This taxonomy enhances our understanding of ADM and allows to identify the fundamental rights at stake and the sector-specific legislation applicable to ADM. The Article calls for empirical observations and input from experts in other areas of public law to enrich and refine the proposed taxonomy, thus ensuring clearer conceptual frameworks to safeguard individuals in our increasingly algorithmic society.