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In fact, the damage stated here does not correspond to concrete
damage; it corresponds to the fact that the claimant suffered damage from
an administrative act and that it will be impossible or difficult to indemnify
that damage. Nevertheless, in order for a suspension of execution order to be
given, this possibility is not enough. As a matter of fact, the administrative
act shall also be expressly contrary to law. The situation of contradiction
to law shall not be strictly interpreted. Indeed, not only the legislation,
but also the equality, justice and equity rules shall be taken into account
in their integrity. Courts interpret whether or not there is a possibility of
contradiction to law upon a simple analysis of the initial petitions they
receive without examining the merits of the case.
Another condition is that, in order for a suspension of execution
order to be given, a “ground” shall be given as per Article 27 of the Code
of Administrative Procedure (hereinafter referred to as the “CAP”) and
Paragraph 5 of Article 125 of the Constitution. The condition of existence
or not of the occurrence of damages which are difficult or impossible to
remedy and the express contradiction to law of the administrative act shall
be established with a valid ground. Decisions without a ground are invalid.
Paragraph 5 of Article 27 of the CAP provides that suspension of
execution orders will be given against financial guaranty. The purpose of
the financial guarantee is to cover the administration’s damages caused due
to a suspension of execution and the non-annulment of the administrative
act at the end of the lawsuit. As financial guaranty, money, letters of
guarantee issued by banks, treasury bonds and debentures, national
stocks and bonds to be determined by the government and moveable and
immoveable property provided by the persons concerned or which have
been provided by third parties in favor of the persons concerned and which
have been seized pursuant to an attachment order by the creditor public
administration set forth in the Code of Civil Procedure and in the Law
on the Procedure for the Collection of Public Receivables are accepted.
Financial guarantee is not requested from the administration or a person
who benefits from public legal aid.
Finally, a “situation in which suspension of execution cannot be
requested” shall not exist. As examples to these situations, pursuant to
Article 125/6 of the Constitution, acts not submitted to judicial review and
to which suspension of execution orders may not be given – for instance,
the acts of President of the Republic in his own competence, and the
decisions of the Supreme Military Council, Decisions of the Council of