Events
The applicants are joint owners of the immovable property numbered 434 parcels. Upon the sale of the real estate No. 435 parcel of agricultural land bordering the mentioned real estate, the owners of the real estate No. 434 and 436 parcels opened title deed cancellation and registration cases due to the right of pre-purchase.
A, who is the owner of the immovable property numbered 436 parcels.S.in the case filed by nin on 23/8/2016, in order to prevent the sale and transfer of real estate to third parties, the court of first instance issued an injunction on 7/9/2016, and this decision was recorded in the land registry.
The applicants filed a lawsuit on 12/12/2016. Although both cases were filed in the same court, the cases were decided by different judges. In the case filed by the applicants, the civil court of first instance decided on 7/3/2017 and ruled on the registration of the real estate in favor of the applicants. The decision has been finalized without recourse to legal remedies. The applicants requested that the immovable property be registered in their names as required by this provision. Court of first instance, A.S. due to the fact that a lawsuit was filed by him on a previous date, he instructed the land registry directorate not to register the real estate in favor of the applicants, and the land registry directorate rejected the applicants’ registration request.
A.S.the case filed by nin was decided by the civil court of first instance on 19/7/2017 and the immovable property A.S. it is decreed to be registered in his name.
On top of this, the applicants filed a lawsuit in the administrative court twice with a request to cancel the administrative procedure related to the refusal of the registration request, and the administrative court rejected both cases on the grounds that the land registry directorate did not fulfill the registration request in accordance with the request of the civil court of first instance and established a transaction within the framework of the related authority. The request to appeal against the decisions was rejected by the regional administrative court.
Count
The applicants claimed that the right of ownership was violated due to the non-execution of the court decision on the registration of the immovable property based on the right of pre-purchase.
The Court’s Assessment
Although the land registry directorate hesitated to execute the registration decision made in favor of the applicants due to the fact that the court of first instance issued an injunction on 7/9/2016, it is clear that the injunction decisions do not constitute an obstacle to the registration of the court’s provisions. The injunction decision is aimed at preventing the immovable property owner from selling or transferring his immovable property to third parties and does not have a preventive function of the execution of the court’s provisions. In the decision of the civil court of first instance dated 19/7/2017, A.A.there is also nothing acceptable in the opinion that the acceptance of the case is actually the transfer of the immovable by consent. Defendant A.A. although he accepted the case, the ownership of the immovable property A.A.it was transferred to the applicants not with the acceptance of the applicant, but with the decision of the court. On the other hand, it is at the discretion of the judge considering the case to assess whether the parties to the case are malicious or not. Even if the judge makes a mistake, the binding nature of the decision he makes does not disappear. Therefore, the land registry directorate cannot avoid executing the registration decision by citing the precautionary measure decision. The failure of the land registry directorate to execute a court decision is governed by Article 138 of the Constitution. it clearly violates the article.
In addition, in the concrete case, it was observed that the land registry directorate refrained from executing the registration decision made in favor of the applicants in accordance with the instructions of the civil court of first instance. It should be noted that it is not acceptable for a judicial authority to send instructions to the administration not to execute a decision made by another judicial authority or by itself, unless it has a legal basis. The fact that the decision is considered unlawful does not justify the courts to stop the execution of a decision by a procedure not provided for in the law. The execution of unlawful decisions can only be stopped by complying with the methods provided for in the relevant procedural laws. Any intervention other than this is subject to Article 138 of the Constitution. it contradicts its substance.
In the letter sent by the civil court of first instance to the land registry directorate and containing the instruction not to register the real estate in favor of the applicants, it was observed that it emphasized that the injunction decision was made before the applicants filed a lawsuit. 5403) soil conservation and land use law within the scope of the availability of the right of pre-conditions, determination of owning multiple flanking and decide how to use this right by the border will be given to the lawsuit in favor of a preliminary injunction to be granted to resolve the issues that they create an obstacle to the other next it is not the role of the Constitutional Court. These issues are problems related to the basis of the right to pre-purchase regulated in Law No. 5403, and it is the job of the courts of instance to resolve them.
However, the civil court of first instance made a decision by evaluating these issues in the case filed by the applicants. The issue before the Constitutional Court is not whether this decision complies with Law No. 5403, but whether its non-execution violates the right to property. A. of the civil court of first instance.S. the injunction decision issued in the case filed by A.S.ye if he believes that he recognizes a superior right and prevents the registration decision from being made in favor of the applicants, he should have taken this into account before making a decision in favor of the applicants. After the decision was made, the civil court of first instance implied that its decision was wrong with an administrative letter sent to the land registry directorate and asked the land registry directorate not to implement the decision under Article 138 of the Constitution. it is incompatible with its substance, as well as incompatible with seriousness. Even if it is legally erroneous, the execution of the court decision is mandatory unless it is eliminated in accordance with the procedures provided for in the law.
The thought that the rights of third parties will be harmed also does not justify the fact that the court of first instance instructs the land registry directorate not to execute the decision. At the time the applicants filed the lawsuit, A.S. it has been seen that the case opened by him is also the most urgent. It would be appropriate for the court of first instance to evaluate both cases together and then decide from the point of view of good administration of justice and procedural economy. However, it was assessed that the court of first instance tried to remedy this negligence and failure in file management by stopping the execution of the decision without any legal basis, thereby depriving the applicants of the right to execute a court decision issued in their favor.
In the cases filed by the applicants, the administrative court also concluded that the refusal of the registration request is in accordance with the law, stating that the land registry directorate is within its authority to fulfill the instructions of the court of first instance. 138 of the Constitution of the administrative court of the civil court of first instance dated 7/4/2017. it was observed that he did not conduct an audit in terms of whether he was in violation of his article. The fact that the contract in question, which is clearly not of a judicial nature, is binding from the point of view of the land registry directorate, avoiding an examination of the main issue in the dispute has led to the result that an effective judicial audit has not been conducted.
As a result, the non-execution of the registration decision made in favor of the applicants is subject to Article 138 of the Constitution. it has been concluded that the court decisions contained in the article are contrary to the guarantee that they are binding and must be fulfilled without delay.
The Constitutional Court has ruled that the right to property has been violated on the grounds described.
