JOINT PARTLY DISSENTING OPINION OF JUDGES MAKARCZYK, BUTKEVYCH AND BOTOUCHAROVA

1. We voted against the finding of a violation of Article 8 in the present case.

2. The majority considered that Mr Al- Nashif's deportation was ordered pursuant to a legal regime that did not provide the necessary safeguards against arbitrariness and concluded that the interference with the applicants' family life was not, therefore, based on legal provisions that met the Convention requirement of lawfulness.

3. While the authorities must be criticised for the fact that there were insufficient procedural safeguards in the decision-making process, that was only one aspect - among others - of the question whether the interference with the applicants' family life was proportionate to the legitimate aim pursued by that interference. The Court has on many occasions held that the quality of the decision-making process is a matter going to the question of proportionality (see, mutatis mutandis , T.P. and K.M. v. the United Kingdom, [GC], no. 28945/95, ECHR 2001-V, § 72, and Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I, § 92).

4. If that approach was adopted, it would become obvious that in the present case despite any procedural deficiencies the principle of proportionality was not infringed.

5. As the majority rightly stated, Article 8 of the Convention cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory (see paragraph 114 of the judgment).

6. Mr Al-Nashif and Mrs Saleh arrived in Bulgaria as adults, after having married in their home country, and had spent less than seven years in Bulgaria at the time of the impugned deportation. The fact that their children born during that period acquired Bulgarian citizenship should not be seen as an important factor in the proportionality analysis as they are very young, naturally must follow their parents, and apparently speak Arabic. Mrs Saleh left Bulgaria with the children in June 2000, a year after the deportation of her husband, and settled in Jordan, where she has close relatives. Mr Al ‑ Nashif himself has close relatives in Syria, has a Syrian stateless person's identity document and, when entering Bulgaria in 1992, declared Syria as his country of residence. On the basis of the above it can hardly be considered that the family had sufficiently strong links with Bulgaria. It is obvious that the applicants can lawfully establish their family home in Syria or elsewhere.

7. We are of the opinion that, having regard to all relevant factors, the deportation of Mr Al-Nashif from Bulgaria was not disproportionate in the particular circumstances. There was no violation of Article 8 of the Convention. As the complaint under that provision was not arguable, Article 13 did not apply.

8. Consequently, as to just satisfaction, since the only violation of the Convention we found was that of the first applicant's rights under Article 5 § 4, we would award him 2,000 euros and dismiss the remainder of the claim.

[1] In its composition before 1 November 2001.