opportunity. According to the State party, the
question of the exhaustion of domestic remedies
must be considered in relation to each specific case.
As far as the author is concerned, the State party
claims that the review of his conviction in cassation
was not limited to formal or legal aspects, but
allowed for a complete review of the facts and the
evidence on which the conviction had been based, as
the Supreme Court judgement in the author’s case
actually states. As to the scope of review in
cassation, the State party argues that judicial practice
has evolved on the question of the scope of review in
cassation, especially in respect of errors of fact and
assessment of evidence. The State party claims that
this point is addressed in the cassation judgement
too. In the State party’s view, therefore, the author
should have submitted an application for amparo in
order to allow the Constitutional Court to consider
the scope of the review undertaken in his specific
case.
actually refers to a situation that has always existed,
for the Supreme Court may examine the facts in
cassation proceedings in cases characterized by
extreme arbitrariness or manifest irrationality.
5.2 The author emphasizes that it is untrue that in
cassation the Supreme Court undertook a complete
review of the errors of fact in the judgement. He
calls attention to the fact that the judgement handed
down by the National High Court ignored evidence
presented in his defence, and that this was not
reviewed in cassation. According to the author, his
communication is identical to the one on which the
Committee ruled in the Gómez Vázquez case and
should be dealt with in the same manner. He alleges
that, while the State party claims the possibility of a
remedy of amparo before the Constitutional Court, it
also admits that if he were to exercise that remedy it
would be dismissed, which he considers to be proof
of its futility.
Decision of the Committee on admissibility
4.3 The State party refers to the judgement
handed down by the Supreme Court in the author’s
case, which reads: “As a perusal of this judgement
will confirm, the various parties have had the
opportunity to formulate more than 170 grounds for
cassation, frequently invoking errors of fact in the
assessment of evidence and the subsequent review of
proven facts. The presumption of innocence is also
invoked as grounds for challenging the rationality
and logic applied in assessing the evidence. This
implies that we are speaking of a remedy that goes
beyond the strictly defined, formal limits of
cassation in the conventional sense and satisfies the
requirement of a second hearing.”
6.
At its eightieth session, on 8 March 2004, the
Committee found that domestic remedies had been
exhausted in accordance with article 5, paragraph 2
(b), of the Optional Protocol and declared the
communication admissible inasmuch as it raised
issues relating to article 14, paragraph 5, of the
Covenant.
Submissions of the State party on the merits
(a)
Legislative amendment extending the remedy
of appeal in Spain
7.1 The State party reports that Organic Law
No. 19/2003, of 23 December 2003, instituted the
right to a second hearing in Spain, empowering the
Criminal Divisions of the High Courts of Justice to
try appeals against rulings handed down by the
provincial courts and providing for the creation of an
Appeals Division in the National High Court.
According to the preamble, the aim of this Act was,
in addition to reducing the workload of the Second
Division of the Supreme Court, to resolve the
controversy that arose following publication of the
Human Rights Committee’s opinion of 20 July 2000,
in which it found that Spain’s current cassation
procedure violated the Covenant. The State party
further notes that the considerable extension of the
scope of cassation had necessitated a legislative
amendment to transfer responsibility from the
Supreme Court and allow it to confine itself to
standardizing the application of the law. The State
party stresses that the law was amended not because
the scope of cassation was not broad enough to meet
the requirements of the Covenant but because, on the
contrary, that scope had been broadened so far that it
became necessary to address the problem of the
Supreme Court’s excessive caseload.
4.4 The State party argues that a heavier penalty
was imposed in full compliance with the accusatorial
procedure and that the author was fully aware of the
penalties associated with the charges; moreover, it
was quite untrue to say that it was a first-time
conviction for the author. In the State party’s view,
the fact that a number of States parties have made
reservations to article 14, paragraph 5, of the
Covenant, thereby excluding its application to cases
in which a heavier sentence is handed down, does
not imply that the provision itself precludes the
imposition of a heavier sentence.
Author’s comments
5.1 In his written submission of 25 July 2003, the
author reiterates the futility of submitting an
application for amparo to the Constitutional Court.
He says that the settled practice of the Supreme
Court and the Constitutional Court both before and
after publication of the Committee’s opinion in the
Gómez Vázquez case has not changed with regard to
cassation proceedings, in the sense that neither will
review matters of fact in a given case. He indicates
that the so-called evolution of judicial practice
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