substantiated by documentary proof which is attached to the file, demonstrates the error of the court, and is not contradicted by other evidence. (c) Scope of the review in the author’s case 8.3 The author claims that the remedy of cassation does not permit any challenge to the credibility of the witness or expert testimony upon which the sentence was based except in cases of manifest arbitrariness or a complete absence of evidence for the prosecution. On the count of fraud, the National High Court judgement found that the author had obtained joint venture partnerships free of charge; this the author denied, stating that what he had received were professional fees in payment for his services as a lawyer. A number of expert witnesses supported the author’s version, but it was not accepted by the court; nor did the court admit the documentary evidence submitted by the author in his defence. No review of these points is possible in cassation, says the author. On the count of misappropriation, the National High Court based its ruling on conflicting statements of which the court accepted only those which told against the innocence of the accused, referring explicitly to three prosecution witnesses, whose credibility cannot be reviewed in cassation. The Supreme Court does not deny that it did not review the evidence in this regard, but claims that in reviewing the rationality of the court’s consideration of the evidence it has complied with article 14, paragraph 5, of the Covenant. The prosecutor attached to the Supreme Court, on the other hand, recognized that the Supreme Court was not competent to assess the evidence. The author points out that the State party’s reference to a judgement of the European Court of Human Rights disregards the fact that the right to a second hearing is not recognized in the European Convention on Human Rights but in Protocol No. 7 to that Convention, to which Spain is not a party. He further points out that the Inter-American Court of Human Rights, for its part, in a judgement handed down on 2 July 2004 in the case of Herrera Ulloa v. Costa Rica, took into account the Committee’s decisions in the cases previously referred to and found that Costa Rica’s system of cassation did not comply with the provisions of article 8 of the American Convention on Human Rights because the higher court may not “conduct a complete and thorough review of all the matters discussed and considered by the lower court”.2 (d) No right to a second hearing on the increased sentence imposed in cassation 8.4 The author claims that those States parties that wish to preclude application of article 14, paragraph 5, of the Covenant in cases where a sentence is increased by the higher court have entered a specific reservation to that effect. The author cites the reservation entered by Austria in that regard. He adds that the State party could make certain simple changes to the law to ensure that a division of the Supreme Court could carry out a full review of a penalty imposed or increased on appeal. He points out that Spain’s Judiciary (Organization) Act provides a review mechanism for similar cases, such as judgements handed down by the Administrative Division of the Supreme Court. Issues and proceedings before the Committee Consideration of the merits 9.1 The Human Rights Committee has considered the present communication in the light of all the information made available by the parties, as provided in article 5, paragraph 1, of the Optional Protocol. 9.2 In a previous case (communication No. 1095/2002, Gomariz v. Spain, Views of 22 July 2005, para. 7.1) the Committee held that the absence of a right of review by a higher court of a conviction imposed by an appeal court following acquittal by a lower court constituted a violation of article 14, paragraph 5, of the Covenant. The present case is different in that the conviction by the lower court was confirmed by the Supreme Court. That court, however, increased the penalty imposed by the lower court in respect of the same offence. The Committee notes that in the legal systems of many countries appeal courts may lower, confirm or increase the penalties imposed by the lower courts. Although the Supreme Court in the present case took a different view of the facts found by the lower court, in that it concluded that the author was a principal, and not merely an accessory, in relation to the misappropriation offence, in the Committee’s view the finding of the Supreme Court did not change the essential characterization of the offence but merely reflected the Supreme Court’s assessment that the seriousness of the circumstances of the offence merited a higher penalty. Thus there is no basis for a finding of violation in this case of article 14, paragraph 5, of the Covenant. 9.3 As to the author’s remaining claims under article 14, paragraph 5, of the Covenant, the Committee notes that several of the grounds for cassation submitted by the author to the Supreme Court referred to alleged errors of fact in the evaluation of the evidence and violation of the principle of presumption of innocence. It is clear 2 Inter-American Court of Human Rights, Herrera Ulloa v. Costa Rica, judgement of 2 July 2004, series C, No. 107, paras. 166-167. 118 118