Events
The applicants are the joint owners of the immovable parcel numbered 434. Upon the sale of the immovable with parcel number 435, which is an agricultural land adjacent to the aforementioned immovable, the owners of the immovables with parcels 434 and 436 filed lawsuits for cancellation of title deed and registration due to the pre-purchase right.
In the lawsuit filed by A.S., the owner of the immovable parcel numbered 436, on 23/8/2016, a preliminary injunction was given by the civil court of first instance on 7/9/2016 in order to prevent the sale and transfer of the immovable to third parties, and the said 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 lawsuit filed by the applicants, the civil court of first instance decided on 7/3/2017 and ruled that the immovable be registered in favor of the applicants. The decision was finalized without resorting to legal remedies. As a requirement of this provision, the applicants demanded that the immovable be registered in their name. Court of First Instance, A.S. Since a lawsuit was filed by the Land Registry at an earlier date, the land registry directorate gave the instruction not to register the immovable in favor of the applicants, and the title deed directorate rejected the applicants’ registration request.
The lawsuit filed by A.S. was concluded by the civil court of first instance on 19/7/2017 and the property was transferred to A.S. registered in his name.
Thereupon, the applicants filed a lawsuit twice in the administrative court for the annulment of the administrative act regarding the rejection of the registration request, and the administrative court rejected both cases on the grounds that the title deed directorate did not fulfill the registration request in line with the request of the civil court of first instance and established proceedings within the framework of the subordinate jurisdiction. The appeal against the decisions was rejected by the regional administrative court.
allegations
The applicants claimed that the right to property was violated due to the non-execution of the court decision, which ruled for the registration of the immovable based on the pre-emption right.
Court’s Evaluation
Although the title deed directorate hesitated to execute the registration decision in favor of the applicants because the court of first instance had given an interim injunction on 7/9/2016, it is clear that the interim injunctions did not prevent the registration of the court’s provisions. The interim injunction is intended to prevent the immovable owner from selling or transferring his immovable to third parties, and does not have a function to prevent the execution of court provisions. In the decision of the civil court of first instance dated 19/7/2017, the view that A.A.’s acceptance of the case is in fact a voluntary transfer of the immovable is also not acceptable. Defendant A.A. Although he accepted the lawsuit, the ownership of the immovable was transferred to the applicants not with the acceptance of A.A., but with a court decision. On the other hand, it is at the discretion of the judge handling the aforementioned case to evaluate whether the parties to the case are in bad faith. Even if the judge makes a mistake, the binding character of his decision does not disappear. Therefore, the title deed directorate cannot refrain from executing the registration decision by citing the interim injunction decision. Failure of the Land Registry to execute a court decision clearly violates Article 138 of the Constitution.
In addition, in the concrete case, it was seen that the land registry directorate refrained from executing the registration decision in favor of the applicants in line with the instructions of the civil court of first instance. It should be noted that it is not acceptable for a judicial authority to instruct the administration not to execute a decision given by another judicial authority or by itself, unless there is a legal basis. Considering the decision to be unlawful does not justify the courts to suspend the execution of a decision by a procedure not foreseen in the law. The execution of unlawful decisions can only be stopped by following the methods stipulated in the relevant procedural laws. Any intervention other than this contradicts Article 138 of the Constitution.
It is observed that in the letter sent by the civil court of first instance to the land registry directorate containing the instruction not to register the immovable in favor of the applicants, it was emphasized that the interim injunction decision was given before the applicants filed a lawsuit. It is the duty of the Constitutional Court to determine the conditions for the use of the right of pre-emption within the scope of the Law No. 5403 on Soil Conservation and Land Use, how to decide if this right is exercised by more than one neighboring immovable owner, and whether the provisional injunction decision in favor of one neighbor does not prevent the other border from filing a lawsuit. is not. These issues are related to the essence of the pre-emption right regulated in Law No. 5403, and it is up to the courts of instance to resolve them.
However, the civil court of first instance evaluated these issues and made a decision in the case brought by the applicants. The issue before the Constitutional Court is that this decision was taken by Law No. 5403.
It is not to check whether it is in compliance with the UN, but whether its non-execution violates the property right. Court of First Instance A.S. If he thinks that the interim injunction decision in the case filed by A.S. gives a superior right and prevents the registration decision 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 rendered, the court of first instance implying in an administrative letter sent to the land registry office that its decision was wrong and asking the land registry office not to implement the decision is not in line with Article 138 of the Constitution, nor does it seriously. Even if it is legally wrong, the execution of the court decision is obligatory unless it is eliminated in accordance with the procedures stipulated in the law.
The thought that the rights of third parties will be damaged does not legitimize the order of the civil court of first instance to the land registry directorate not to execute the decision. At the time the applicants filed suit, A.S. It has been seen that the case filed by the court is also pending. It would be appropriate in terms of good administration of justice and procedural economy for the civil court of first instance to consider both cases together and decide after that. However, it has been evaluated that the court of first instance tried to compensate for this neglect and failure in file management by stopping the execution of the decision without any legal basis, thus depriving the applicants of the right of execution of a court decision given in their favor.
In the lawsuits filed by the applicants, the administrative court also concluded that the refusal of the registration request was in accordance with the law, stating that the title deed directorate was within the jurisdiction to fulfill the instructions of the civil court of first instance. It has been seen that the administrative court did not carry out an audit in terms of whether the writ of the civil court of first instance, dated 7/4/2017, is in violation of Article 138 of the Constitution. The fact that the aforementioned writ, which is obviously not of a judicial nature, is binding in terms of the land registry directorate, and refraining from making an examination on the main issue in the dispute resulted in the absence of an effective judicial review.
As a result, it has been concluded that the non-execution of the registration decision given in favor of the applicants is contrary to the guarantee that court decisions in Article 138 of the Constitution are binding and must be fulfilled without delay.
The Constitutional Court decided that the right to property had been violated for the reasons explained.