misappropriation for which the author had been convicted as an accessory, the incriminating conduct should have been classed as the perpetration of an offence, not merely aiding and abetting. The author disputed that claim, notably in a letter to the Supreme Court dated 4 December 2000, which is in the file before the Committee. In a judgement dated 29 July 2002, the Supreme Court ruled on the appeal and increased the author’s sentence for misappropriation from four months’ to four years’ imprisonment, holding that he had been more deeply involved in the offence, as a perpetrator and not merely an accessory. According to the author, the Supreme Court failed to address questions of fact owing to the restricted nature of cassation proceedings, and he was thus deprived of the right to a full review of his case. extreme arbitrariness or manifest irrationality. Moreover, the author argues that in rulings handed down after the Committee had delivered its opinion in the Gómez Vázquez case, the Constitutional Court has held that article 14, paragraph 5, of the Covenant does not actually establish the principle of a second hearing, but merely stipulates that the judgement and sentence should be referred to a higher court, and that an appeal in cassation, notwithstanding the restricted scope of this remedy, is in keeping with the review and safeguard function required by the Covenant. 3.3 In support of his complaint, the author cites the Committee’s concluding observations on the fourth periodic report of Spain, which recommend that the State party should institute a right of appeal against decisions of the National High Court in order to meet the requirements of article 14, paragraph 5, of the Covenant. He also cites the Committee’s opinion in the Gómez Vázquez case, wherein it concluded that the lack of any possibility of fully reviewing the author’s conviction and sentence, the review having been limited to the formal or legal aspects of the conviction, meant that the guarantees provided for in article 14, paragraph 5, of the Covenant had not been met. 2.5 On the day sentence was handed down, i.e., 29 July 2002, the author was taken to prison where he stayed until September the same year, when he was released on probation by reason of his age and infirmity. 2.6 The author is of the view that domestic remedies were exhausted with the judgement handed down by the Supreme Court. He admits that he has not submitted an application for amparo (enforcement of constitutional rights) to the Constitutional Court, maintaining that this option is pointless in the light of the Constitutional Court’s consistently held position that an appeal in cassation complies with the requirement for a review established under article 14, paragraph 5, of the Covenant. 3.4 The author alleges a second violation of article 14, paragraph 5, on the grounds that he was denied any kind of review in relation to the increased sentence imposed by the Supreme Court. The author claims that Spain, unlike other States parties, did not enter reservations to article 14, paragraph 5, to ensure that this provision would not apply to firsttime convictions handed down by an appeal court. He adds that the settled practice of the Constitutional Court is that there is no right of appeal in respect of a sentence handed down by the court of cassation, so it was futile to submit an application for amparo. The complaint 3.1 The author alleges a violation of article 14, paragraph 5, of the Covenant, arguing that he was unable to secure a full review of the judgements handed down by the National High Court. Although the author sought to have the evidence underpinning his conviction re-examined, alleging a violation of his right to presumption of innocence, he says that, owing to the narrow scope of cassation proceedings, the Supreme Court’s review of his case was confined to points of law only, thereby precluding a reexamination of issues of fact and a review of the evidence originally dismissed by the National High Court. He maintains that the Supreme Court’s argument that it is unable to review the evidence as it was not present at the trial does not apply in his case, since the entire trial proceedings were recorded on videotape. Observations of the State party on admissibility 4.1 In its written submission of 17 April 2003, the State party maintains that the communication is inadmissible under article 5, paragraph 2 (b), of the Covenant because domestic remedies have not been exhausted. It holds that the author of the communication should have submitted an application for amparo to the Constitutional Court with respect to the Supreme Court’s decision to reject his appeal in cassation, and that amparo proceedings cannot be considered an ineffective remedy in the specific case of the author. 4.2 In the view of the State party, the Constitutional Court should have had the opportunity to give its opinion, in amparo proceedings, on the scope of review in cassation in the present case. Since the author failed to apply for amparo, the Constitutional Court was denied that 3.2 According to the author, the Supreme Court has consistently taken the position that the assessment of evidence adduced in the course of proceedings is not a matter for an appeal in cassation, save in exceptional cases characterized by 114