PARTLY DISSENTING OPINION OF JUDGE PEJCHAL

I am in full agreement with my colleagues regarding their conclusion that the complaints concerning Articles 2, 3 and 8 of the Convention should be declared admissible. I am also in full agreement with their finding that there has been no violation of Articles 2 and 3 of the Convention.

However, to my regret I have to dissent regarding the finding of no violation of Article 8 of the Convention. I voted in favour of finding that there has been a violation of Article 8 of the Convention.

The applicant ’ s case resembles on the facts the case of Moustaquim . In line with the findings in the latter case I am convinced that in the applicant ’ s case “ as far as respect for the applicant ’ s family life is concerned, a proper balance was not achieved between the interests involved, and that the means employed was therefore disproportionate to the legitimate aim pursued ” ( see Moustaqium v. Belgium , no. 12313/86, §§ 46-47, ECHR 1991-I ).

The applicant has been living in Belgium for more than fifteen years. Two of his three children were born in Belgium, and his third child has been living there from the age of six. The applicant ’ s spouse and his three children obtained an unlimited residence permit in Belgium on 29 July 2010 .

On 28 April 2000 the applicant ’ s spouse was sentenced to four months ’ imprisonment for theft. On 18 December 2001 the applicant was convicted of robbery with violence and threats and was sentenced to fourteen months ’ imprisonment, suspended . In my opinion that was the right time to order the expulsion of the applicant and his spouse, and not today when the applicant is very seriously ill and his spouse and three children have an unlimited residence permit in Belgium.

At this point I cannot but cite the wise words of Celsus : “ Benignius leges interpretandae sunt , quo voluntas earum conservetur ”.

Having regard to these circumstances, I am of the opinion that the decision to expel the applicant did not strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the applicant ’ s fundamental rights . Accordingly, there has been a violation of Article 8 of the Convention.