PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, STEINER AND SPIELMANN

1. The majority have found no violation of Article 8 of the Convention.

2. We are unable to agree with this finding.

3. The first applicant arrived in Russia from Uzbekistan and got married to Mrs Maymuna Kamaliyeva in 2000. Notwithstanding their failure to have him extradited to Uzbekistan in 2006, the Russian authorities did not hesitate to expel the first applicant in 2007, thus failing to comply with a decision of the Court under Rule 39 and hence in violation of Article 34 of the Convention. This was an administrative expulsion, for a minor offence, in contravention of the proportionality requirement under Article 8 of the Convention.

4. Indeed, as the Court has rightly accepted, both applicants were in a genuine family relationship (see paragraph 60). The Court also found that the offence for which the first applicant had been expelled (breach of the registration rules for foreign nationals, punishable by a fine of about 11 to 23 euros (EUR)), does not appear to be a particularly serious one (see paragraph 62).

5. The majority have justified their decision by the fact that the domestic courts dismissed the arguments raised by the first applicant (see paragraph 63). This should not have been decisive. In our view, the mere fact that the domestic courts examined the first applicant ' s arguments should not lead the Court to conclude that the applicants ' family situation did not outweigh the interests of public order, in the absence of a detailed analysis of the proportionality requirement. Once again, and regrettably so, the Court has had the reflex action of applying the concept of the margin of appreciation to the circumstances of the case without examining whether the domestic courts complied with the Ü ner criteria, reiterated in paragraph 61 of the judgment.

6. In our view, the application of those criteria should have led the Court to conclude that the expulsion violated Article 8 of the Convention. Indeed, applying those criteria, we would like to emphasise that the offence committed by the first applicant was a petty one, that he stayed for many years in Russia , that he was married to a Russian national and behaved well during his stay. Moreover, the expulsion should also be seen in context. The authorities knew that the first applicant was under the threat of prosecution in Uzbekistan for offences for which extradition had previously been refused by the Deputy General Prosecutor (paragraph 22). The mere fact that the first applicant had not taken any steps to regularise his status (paragraph 62) should not have been decisive.

7. Under those circumstances, and for these reasons, we are of the opinion that Article 8 of the Convention has been violated.