DISSENTING OPINION OF JUDGE STEINER

I voted for finding a violation of Article 8 as I consider that the domestic authorities, when ordering the applicant ' s expulsion from German territory, did not sufficiently take into account the applicant ' s interest in maintaining his relationship with his daughter, who was five years old by the time the deportation order became final. I consider the applicant ' s separation from his daughter to be all the more serious as the child needed to remain in contact with her father, especially because of her young age (see, mutatis mutandis, Berrehab v. the Netherlands , judgment of 21 June 1988, Series A no. 138, § 37). On the other hand, one has to take into account that the applicant was convicted of a very serious crime. Having regard to these circumstances, I would have found the measure acceptable only if the applicant ' s exclusion from German territory had been, from the outset, adequately limited in time.

Quite apart from this, I consider that the Court should not have left the issue of exhaustion of domestic reme dies undecided (see paragraphs 4 7 to 4 9 of the judgment), but should have dismissed the Government ' s preliminary objection in this respect. Having regard to the Court ' s consistent case-law and to the circumstances of this particular case, I consider that the applicant had clearly exhausted domestic remedies in the instant case.

The Court has consistently held that an applicant who has unsuccessfully availed himself of one appropriate remedy directly aimed at redressing the litigious situation cannot be expected to have had recourse to further remedies which might be in principle available to him, but which hardly offer better chances of success (see Baumann v. France , no. 33592/96, § 46 , 22 May 2001; De Moor v. Belgium , judgment of 23 June 1994, Series A no. 292 ‑ A , § 50; A. v. France , judgment of 23 November 1993, Series A no. 277 ‑ B, § 48; Müslim v. Turkey (dec.), no. 53566/99, 1 October 2002; Avci v. Belgium (dec.), no. 61886/00, 6 May 2004; Giacomelli v. Italy (dec.), no. 59909, 15 March 2005; Vitiello v. Italy (dec.), no. 6870/03, 5 July 2005; Paudiccio v. Italy (dec.), no. 77606/01, 5 July 2005; and EEG-SLACHTHUIS VERBIST v. Belgium (dec.), no. 60559/00 , 10 November 2005). Accordingly, an applicant who had unsuccessfully lodged an appeal against a deportation order had been found not to be under an obligation to avail himself of further possible remedies aimed at obtaining a suspension of the deportation proceedings (see Avci , cited above).

In the present case, the applicant duly exhausted domestic remedies with respect to the deportation order of 28 July 2000. In their decisions, the domestic courts expressly denied that the applicant ' s interest in the enjoyment of his family life outweighed the public interest in his expulsion. They considered, in particular, that the applicant ' s relationship with his daughter was not strong enough to warrant his remaining in Germany . The applicant subsequently lodged a request for an interim order with the aim of obtaining temporary suspension of deportation ( Duldung ). The Hanover Administrative Court , in a decision of 6 February 2003, rejected the applicant ' s request, referring expressly to its own previous decision which had been upheld by the Administrative Court of Appeal.

Under these circumstances, I have serious doubts as to whether the applicant was obliged to lodge a request to suspend deportation in the first place. In any event, he could not have been reasonably expected to pursue his appeal further against the negative decision of the Hanover Administrative Court . Accordingly, the applicant has to be regarded as having exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.