CONCURRING OPINION OF JUDGE LEMMENS

1. I fully agree with my colleagues as to the outcome in this case. It seems to me, however, that the case could have been disposed of in a much more straightforward way.

The facts of the case are very simple. The applicant brought an appeal before the Administrative Court which, she stated by way of clarification, was directed against the decision upholding the demolition order (“the demolition decision”), and not against the later decision upholding the order for the enforcement of that demolition order (“the enforcement decision”). The Administrative Court failed to take a decision on the appeal against the demolition decision, and instead took a decision on a non-existent appeal against the enforcement decision. When the applicant then filed a constitutional complaint, the Constitutional Court characterised the judgment of the Administrative Court as one relating to the enforcement of a decision – and thus not as a judgment on the merits of a dispute – with the result that the complaint was declared inadmissible as being directed against a decision that was not amenable to constitutional review.

2. With respect to the objection based on the six-month rule, I find it obvious that it was not unreasonable for the applicant to file a constitutional complaint against the judgment of the Administrative Court dismissing a claim which she had not brought before that court (an appeal against the enforcement decision) and failing to take a decision on the claim which she had brought (an appeal against the demolition decision). The fact that, according to the Constitutional Court ’ s case-law, complaints directed against judgments that do not concern the merits of a dispute are inadmissible (see paragraphs 36 to 37 of the judgment) is, in my opinion, not a relevant issue. Even though the Constitutional Court applied that same case-law in the applicant ’ s case, the fact remains that the latter ’ s constitutional complaint concerned a decision taken on an appeal directed against a demolition decision , not against its enforcement. Our judgment should not have entered into a discussion with respect to the Constitutional Court ’ s practice concerning decisions rejecting appeals effectively directed against enforcement decisions or other decisions not related to the merits.

If the Court had refrained from entering into that discussion, it could also have avoided suggesting that the applicant was entitled to pursue her constitutional complaint, notwithstanding the Constitutional Court practice of declaring complaints of a certain type inadmissible, because she could have hoped “that such practice might evolve” (see paragraph 38 of the judgment). I find this suggestion debatable. Where it can effectively be assumed, in the light of the existing case-law, that a given remedy would be bound to fail (compare Pressos Compania Naviera S.A. and Others v. Belgium , 20 November 1995, § 27, Series A no. 332), an applicant is absolved from the obligation to exhaust that remedy (see, generally, Aksoy v. Turkey , 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI, and Sejdovic v. Italy [GC], no. 56581/00, § 55, ECHR 2006 ‑ II ), without having to wonder whether or not he or she would be able to convince the relevant court to change its case-law. Our judgment could be interpreted as meaning that an applicant cannot always rely on the existence of negative case ‑ law. Be that as it may, in our case, as stated above, there is in my opinion no question of the existence of clear case-law closing the door of the Constitutional Court to the applicant, since she could very well argue that her complaint did not fall within the scope of the existing case-law concerning decisions unrelated to the merits of a dispute. I therefore do not see why she should have to justify her recourse to the Constitutional Court on the basis of a hope that this case-law might evolve.

3. With respect to the objections based on the rule of exhaustion of domestic remedies, I do not see why it was necessary to join them to the merits of the complaint relating to the right to a court (see paragraph 40 of the judgment). These objections could, in my opinion, have been rejected at the admissibility stage, on the basis of the reasoning developed in the relevant part of the judgment relating to the merits (see paragraphs 50 to 56 of the judgment).

4. With respect to the merits of the complaint, I believe it would have been sufficient to note that the Administrative Court simply made a mistake and failed to decide on the appeal brought by the applicant. There was in my opinion no need to reiterate the general principles relating to the right of access to a court and the possible limitations thereto (see paragraphs 44 to 45 of the judgment). Our case had little or nothing to do with these principles.

If a general principle nevertheless had to be mentioned, it seems to me that it should rather have been the principle that the right to a court includes not only the right to institute proceedings (right of access) but also the right to a judicial determination of the dispute (see paragraph 48 of the judgment, referring to Kutić v. Croatia , no. 48778/99, § 25, ECHR 2002 ‑ II, and Menshakova v. Ukraine , no. 377/02 , § 52, 8 April 2010 ; see the foundations of this principle in König v. Germany , 28 June 1978, § 98, Series A no. 27; Le Compte , Van Leuven and De Meyere v. Belgium , 23 June 1981, § 51, Series A no. 43; Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 49, Series A no. 301 ‑ B; and Assanidze v. Georgia [GC], no. 71503/01, § 129, ECHR 2004 ‑ II).

Because of the mistake made by the Administrative Court, the applicant did not obtain an examination of her appeal (see paragraph 47 of the judgment). In other words, she did not receive a judicial determination of the dispute which she had brought before that court. As this mistake was not remedied by the Constitutional Court, the applicant ’ s right to a court was violated.

Rather than concluding that the applicant was deprived of her right of access to a court (see paragraph 57 of the judgment, referring, mutatis mutandis , to Pelevin v. Ukraine (no. 24402/02 , §§ 28-32, 20 May 2010)), I would say that her right to a judicial determination of the dispute with the administrative authorities was violated.