DISSENTING OPINION OF JUDGE MORENILLA

1.       I regret that I cannot agree with the opinion of the majority

in this case, and refer in that connection to my dissenting opinions

in the Silva Pontes v. Portugal (1) and Zappia v. Italy (2) judgments.

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1.  Judgment of 23 March 1994, Series A no. 286-A.

2.  Judgment of 26 September 1996, Reports of Judgments and

Decisions 1996-IV.

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2.      To explain my position correctly, I persist in maintaining that

in the present case the correct approach, unlike what the majority have

done, is to "dissociate" for the purposes of Articles 26 and

6 para. 1 of the Convention (art. 26, art. 6-1) the declaratory and

enforcement phases of civil procedure, which should be regarded as

two clearly separated and autonomous stages.  Although enforcement

proceedings are a consequence of the judicial decision on the merits

and although in a number of legal systems, especially those derived

from Roman law, it is the courts which have jurisdiction to ensure

execution of their own decisions on the merits, one type of proceedings

follows the other and each has its own specific legal features.

A party in whose favour judgment has been given is free to bring

enforcement proceedings or not, to reach a friendly settlement in the

case or to wait for an extra-judicial solution which suits him.  In

addition, the varied nature of the acts required to be performed to

ensure the effective exercise of the contested right means that

judicial enforcement proceedings also vary in type.  In this case there

was an obligation to perform a specific act, which by its very nature

requires the assent of the party seeking enforcement, who may ask the

court to specify the means of enforcement.  The present case is

therefore a good example of the scope of the initiative accorded to the

plaintiff in civil proceedings, in both of their procedural phases.

3.      As regards the Government's objection concerning the late

submission of the application (Article 26 of the Convention) (art. 26),

I consider that the complaint relating to the excessive length of the

proceedings on the merits falls outside the jurisdiction of the

Strasbourg institutions because those proceedings, which were

declaratory in nature, had ended with a final judgment of the

Matera District Court, deposited in the registry on 7 April 1986,

allowing the applicant's claims.  That judgment became final because

no appeal in due form had been lodged; at Mr Di Pede's request, the

court's registrar certified that no notice of appeal had been

registered (see paragraph 11 of the present judgment).  Mr Di Pede

applied to the Commission on 3 July 1989, that is more than two and a

half years after expiry of the six-month limit laid down by Article 26

(art. 26) for lodging an admissible application concerning his

complaints of procedural defects during the stage when the merits of

his claim were being considered.

        On the other hand, the complaint concerning the excessive

length of the enforcement proceedings, brought by the applicant - and

so late - in order to obtain enforcement of the judgment against the

defendants Mr V. and Mrs L., was admissible for the purposes of

Article 26 of the Convention (art. 26) because those proceedings are

still pending.  Accordingly, the Government's objection must be

rejected only in part, because in my opinion it should be limited to

the declaratory stage of the proceedings.

4.      On 26 April 1988 Mr Di Pede asked the pretore to specify the

means of enforcement of the judgment by which the defendants were

ordered to demolish a building, remove some trees and restore the site

in issue to its former state.  The judge subsequently appointed a

surveyor and a construction firm.  Nine months later the work had been

partially completed.  There is nothing in the file to show what

Mr Di Pede thought of this work, the report on which was sent to him,

at his request, on 2 October 1989, nor that he applied to the bailiff

or the judge for measures "to overcome any difficulties which arise in

the course of the enforcement process" (Article 613 of the

Italian Code of Civil Procedure).

        This long procedural passivity after the decision of the judge

responsible for enforcement was the decisive factor leading to the

situation the applicant complained of.  Italian law relating to

obligations to perform a specific act, where it is a strict rule that

the parties must take the initiative, requires the party seeking

enforcement to ensure that the judgment is complied with and to request

the courts to take the necessary steps to deal with any difficulties

which might arise in the enforcement process (see Articles 612 and 613

of the Code of Civil Procedure, paragraph 16 of the judgment).  "[T]he

hope of settling the case in a climate of 'mutual cooperation'" which

Mr Di Pede's lawyer advanced as an explanation (see paragraph 29 of the

judgment), while entirely understandable, is incompatible with a

complaint of violation of a fundamental right which, because of its

absolute character, does not allow of exceptions to accommodate the

personal preferences of the alleged victims of the State authorities'

actions.