A luta pelas garantias processuais e a mudança de paradigma em matéria de prova: do liberalismo à mass surveillance no processo penal europeu

Only with the open source information available of each any person it is possible through the adequate processing to create a detailed profile of practically all aspects of our private life. According to the algorithm used, this can lead to identify an individual as a "person of interest", and this it is only one step away from that same data being used to establish probable cause to open a criminal case, and if the case ends up in a trial, to present such data as evidence. This article discusses how the access to encrypted messaging platforms (as in the Encrochat case) and the massive processing of data through algorithms and artificial intelligence requires to rethink the whole structure of the criminal procedure. It advocates that there is a need to revisit the procedural safeguards developed during the past two centuries to be able to face the risks of the digital era. It concludes that there is a new shift in the gathering of evidence, which calls for strengthening the fair trial rights at the pre-trial stage.