EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

will necessarily lack the legitimacy required in a democratic society to resolve legal disputes (see Lavents v. Latvia , no. 58442/00, § 114, 28 November 2002). 212. The “law” within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular ( see Gorguiladzé v. Georgia , no. 4313/04, § 68, 20 October 2009; Pandjikidzé and Others v. Georgia , no. 30323/02, § 104, 27 October 2009; and Kontalexis v. Greece , no. 59000/08, § 38, 31 May 2011). This includes, in particular, provisions concerning the independence of the members of a court, the length of their term of office and their impartiality ( Gurov v. Moldova , no. 36455/02, § 36, 11 July 2006; DMD GROUP, a.s., v. Slovakia , no. 19334/03, § 59, 5 October 2010; and Miracle Europe Kft v. Hungary , no. 57774/13, § 48, 12 January 2016). In other words, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by that tribunal with the particular rules that govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006) and the composition of the bench in each case (see Richert v. Poland , no. 54809/07, § 43, 25 October 2011, and Ezgeta v. Croatia , no. 40562/12, § 38, 7 September 2017). There are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, Gautrin and Others v. France , § 58, 20 May 1998, Reports of Judgments and Decisions 1998-III). As regards the subjective test , the Court first notes that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein v. Switzerland , no. 33958/96, § 43, ECHR 2000-XII). In the instant case, the Court is not convinced that there is sufficient evidence to establish that any personal bias was shown by judge M.K. when he sat as a member of the Osijek County Court which found the applicant guilty of war crimes against the civilian population and sentenced him to fourteen years’ imprisonment. As regards the objective test , it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise justified doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy , 7 August 1996, § 58, Reports 1996-III; Wettstein , cited above, § 44; and Micallef v. Malta , no. 17056/06, § 74, 15 January 2008). In this respect even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber v. Belgium , 26 October 1984, § 26, Series A no. 86; Mežnarić v. Croatia , no. 71615/01, § 32, 15 July 2005). The mere fact that a trial judge has made previous decisions concerning the same offence cannot be held as in itself justifying fears as to his impartiality (see Hauschildt v. Denmark , 24 May 1989, § 50, Series A no. 154, and Romero Martin v. Spain (dec.), no. 32045/03, 12 June 2006 concerning pre-trial decisions; Ringeisen v. Austria , 16 July 1971, Series A no. 13, § 97; Diennet v. France , 26 September 1995, Series A no. 325‑A, § 38; and Vaillant v. France , no. 30609/04, §§ 29-35, 18 December 2008, concerning the situation of judges to whom a case was remitted after a decision had been set aside or quashed by a higher court; Thomann v. Switzerland , 10 June 1996, §§ 35-36, Reports of Judgments and Decisions 1996‑III, concerning the retrial of an accused convicted in absentia ; and Craxi III v. Italy (dec.), no. 63226/00, 14 June 2001, and Ferrantelli and Santangelo v. Italy , 7 August 1996, § 59, Reports 1996‑III, concerning the situation of judges having participated in proceedings against co-offenders). The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case,

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