party cites the Supreme Court’s own ruling on the author’s case, stating that the formulation by the parties of more than 170 grounds for cassation, and their frequent invocation of errors in the assessment of evidence and the presumption of innocence, led it to conclude that in the author’s case the right to a second hearing had been exercised. Lastly, the State party asserts that, whatever the merits of the appeal system within the Spanish legal order, it is clear that in this specific case there was a wide-ranging review of the facts and the author’s conviction and sentence were submitted in their entirety to a higher court, in full compliance with the requirements of the Covenant. (d) Increased sentence not a violation of the Covenant 7.7 The State party argues that it is not only the convicted person but also the accusers, including those harmed by the offences being tried, who have the right to appeal and request a review of a conviction, and that this in no way impairs the convicted person’s right to a defence, since he is aware of the charges and may advance whatever arguments he sees fit. The State party adds that any increase in the sentence is passed with every regard for the accusatory principle and in respect of crimes and penalties not exceeding those called for by the charges and of which the accused has been aware since the opening of the trial and naturally remains aware as the remedy proceeds. The rights to information and to a defence enjoyed by the accused in the lower court are not forfeit during cassation. Nor is there any material change in the accused’s circumstances, since the penalties sought in the charges still stand. In this sense, the State party argues, remedies constitute a continuation of the trial. Furthermore, it is not true that the author was convicted for the first time in cassation. The possibility of increasing the sentence upon review and within the terms of the charges and the remedies sought is characteristic of all the sophisticated legal orders to be found in Spain’s neighbours. Anything else would be a denial of the accuser’s right to a remedy, which it cannot be claimed is required under article 14, paragraph 5, of the Covenant. The reservations to article 14, paragraph 5, entered by certain States parties in no way imply that that provision precludes an increase in the sentence when a remedy is sought by the accusers; the intention appears to be rather to forestall any interpretation of article 14, paragraph 5, along the lines of the author’s reading thereof: in other words the aim is to ensure the applicability of that provision, not to preclude it. 117 117 Author’s comments on the State party’s submissions on the merits (a) Amendment to Organic Law No. 19/2003 8.1 In his submission dated 15 November 2004, the author states that this law is not immediately applicable and is not yet in force as the regulations required for its effective implementation have not been enacted. Furthermore, the amendment has no retroactive effect, which means the author’s situation of having been deprived of the right to a second hearing remains unchanged, since the law provides no remedy for cases that have already been judged. The author claims that the ratio legis of the amendment is not, as the State party maintains, extension of the scope of cassation, but rather, as indicated in the preamble to the Act, settlement of the controversy arising out of the Committee’s Views on the Gómez Vázquez case. (b) Alleged extension of the scope of cassation 8.2 The author claims that the State party has disregarded the Committee’s Views in the Gómez Vázquez, Sineiro and Semey cases, in which it found against the State party for the inadequacy of its reviews of criminal judgements. The Committee’s task is to consider a specific case and not, as the State party claims, to give an opinion on the overall human rights situation in the country in question, which is more a matter for the periodic report procedure. The Supreme Court judgement of 16 February 2004 refers to the Sineiro Fernández case in rejecting an appeal in cassation, but disregards the Committee’s Views on the communication submitted by Mr. Sineiro. The Constitutional Court resorted to reasoning the author finds less than convincing: “...it is quite impossible, for reasons both temporal and metaphysical, to faithfully reproduce all that occurred in the trial court. The system complies with the provisions of the Covenant if… it re-evaluates the interpretation of the evidence made by the trial court and reviews the rationality and deductive logic required by any judicial weighing of evidence... One cannot stop time. Not even a video recording of the trial would suffice, for these are images of the past and show us only the scene, not the direct, uncommunicable experiences of those involved.” In respect of the competence of the Supreme Court, says the author, the Constitutional Court states in the same judgement that “...a reassessment of the evidence upon which the trial court based its decision to convict is not one of its functions”. The author adds that, under the Code of Criminal Procedure, article 884, any challenge to the facts deemed proven in the judgement is a ground for dismissal of an application; and, under article 849, an appeal in cassation may be lodged only on the basis of an error in the evaluation of the evidence, where said error is