The decision of the plenary, composed of 10 judges was not unanimous, with the presiding judge, Manuel Aragão, and counselors Carlos Teixeira, Josefa Neto and Maria de Almeida Sango among the defeated votes.
The extraordinary appeal of unconstitutionality was filed by Augusto Tomás and the other convicts of the "CNC case" (Isabel Ceita Bragança, Rui Manuel Moita and Manuel António Paulo) following the ruling of the Supreme Court that sentenced them to between two months and eight years in prison, fine and compensation to the State for crimes of embezzlement and money laundering.
Augusto Tomás, who between 2008 and 2017 was the holder of the Transport portfolio, was convicted of embezzlement, violation of the rules of execution of the budget plan in a continuous manner, abuse of power and economic participation, in the case of the National Council of Shippers (CNC), the body he was in charge of at the time.
The appellants, who presented their claims individually, requested the Constitutional Court to verify whether the Supreme Court ruling violated the principles of the right to a fair trial, the right to personal integrity, the principle of access to the law and effective judicial protection, the right to due process, the right to physical and personal liberty, the presumption of innocence and the right to defense, among others.
The 52-page ruling of the Constitutional Court did not agree with them, considering that the decisions "contain legal grounds that are not unconstitutional in light of the principles of legality and subordination of State acts (Courts) to the Fundamental Law [Constitution].
The judges concluded that the contested decision did not violate the basic assumptions of the democratic state and the rule of law, primarily concerning the substantive guarantees of criminal procedure, such as the right to access to the law and effective judicial protection and the right to a fair and just trial.
In his dissenting opinion, Manuel Aragão argued that the principles of the right to a fair trial "require a maximum suitability of means" and considered that the "mitigation of formalities" is only admissible when necessary "to safeguard another fundamental procedural right".
In this case, the judge considered that there are elements that "certify the violation of the principle of the right to a fair trial", which justified his vote against the Supreme Court ruling.
Maria de Almeida Sango, on the other hand, said in her statement that the Supreme Court violated the ability of the judges of the plenary who would decide on the appeal filed by the appellants to study the case file, which contains more than 28 volumes, in the proper conditions, due to the short time limit that was determined which prevented them from deciding conscientiously.
The judge said that this access to the case file "does not fulfill a merely symbolic function," but serves to allow them to study the case file and express their vote in an impartial manner.
"There is no doubt that the time given to the councilors to issue their visa did not allow them to form a good judgment and make a fair decision," the judge wrote, adding that the judgment "rendered by this instance [Supreme Court] goes against the grain and pinched the constitutional rights and guarantees of the appellants" so it should be declared unconstitutional.
According to Maria de Almeida Sango, the Supreme Court's ruling violates several principles of the Constitution, such as the principle of equality of arms, the right to effective judicial protection, the adversarial principle, and the right to a fair and just trial.