PARTLY DISSENTING OPINION OF JUDGE STEINER JOINED BY JUDGE VAJIĆ

I do not agree with the majority that Article 6 of the Convention is applicable in respect of the first applicant for the following reasons.

It has been the Court ’ s consistent case-law that Article 6 applies only to disputes over “rights” which can be said, at least on arguable grounds, to be recognised under domestic law (see, amongst many other authorities, James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, Z and Others , at § 81 and the authorities cited therein together with McElhinney v. Ireland [GC], no. 31253/96, § 23 , ECHR 2001 ‑ XI (extracts) )

It was the applicants ’ contention that the first applicant had a right recognised under Austrian law for an employment permit. They did not claim that such a right could be derived from the p rovisions of the Employment Act but r ather argued that such a right can be based on other provisions which are part of Austrian law.

I will take these provisions in turn. The first argument is that he can rely on Article 8 of the Convention. I would, however, point out that in the admissibility decision in the case Coorplan-Jenni and Hascic v. Austria (no. 10523/02, 24 February 2005) which concerned the same issue, the Court found that the facts complained of did not fall within the ambit of Article 8 of the Convention. The applicants next argue that the first applicant can rely on the Constitutional Court ’ s case-law prohibiting all kinds of discrimination including discrimination between foreigners. However, this case-law merely refers to an equal enjoyment of legal positions guaranteed by law and cannot guarantee a substantive ri ght to employment itself. Next the applicants suggest that a right to an employment permit might be inferred from the Geneva Refugee Convention. However, it has not been submitted that the first applicant has been recognised as a refugee or that any such application had been made before the domestic authorities. Further, the applicants refer to the International Covenant on E conomic , Social and C ultural rights and the European Social Charta. However, these international instruments are not self executing at the domestic level and for this reason cannot confer any subjective right at the domestic level on the applicants. I would only add that the wording of the relevant provisions does not give the impression that they actually give an unconditional right of employment to foreigners. Lastly the applicants propose that the Association Agreement concluded between the European Union and the Republic of Turkey be extended to them. I do not think this is possible. By concluding such an agreement the parties have consented to enter into a special relation and it cannot be claimed that they had had the intention to extend this special treatment to thirds who are not party to that agreement.

I will now turn to the majority ’ s finding that the fact that the first applicant had no locus standi in the proceedings concerning the issuing of an employment permit did not delimit the substantive content properly speaking of his right, but amounted merely to a procedural bar and that Article 6 of the Convention was therefore applicable (§§ 58, 60). They cite the case Roche v. the United Kingdom . This case refers in fact to previous case-law concerning otherwise well-founded claims in domestic law subsequently prevented from being entertained before a domestic court because subsequently issued legal acts or the grant of State immunity. In these cases Article 6 was held applicable (see Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom , judgment of 10 July 1998, Reports of Judgments and Decisions 1998 ‑ IV; Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001 ‑ XI ; Fogarty v. the United Kingdom [GC], no. 37112/97, ECHR 2001 ‑ XI and McElhinney v. Ireland [GC], no. 31253/96, ECHR 2001 ‑ XI (extracts) ).

However, I cannot find that the present case is in any aspect comparable to these cases. Looking at the relevant provisions of the domestic legislation, the Employment of Aliens Act, and its interpretation by the domestic courts, I cannot discern any provision granting a foreigner the right to an employment permit and, consequently, general locus standi in such proceedings. Only in very exceptional situations, which the applicant has never even alleged to fall under, a foreigner may be party to the proceedings (see § 39 above).

I finally note that in the very case Roche v. United Kingdom the Court stressed that, in assessing whether there is a civil “right” and in determining the substantive or procedural characterisation to be given to an impugned restriction, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts ( see § 120) and, having carefully examined these elements, considered that Mr Roche had no (civil) “right” recognised under domestic law which would attract the application of Article 6 § 1 of the Convention (§ 124)

I regret that the majority disregarded these principles in the present case. Thereby, the Court distorted the domestic legislation and its accepted interpretation by substituting them by its own understanding.