CASE OF AGACHE v. ROMANIA

THIRD SECTION

CASE OF AGACHE v. ROMANIA

(Application no. 35032/09)

JUDGMENT

STRASBOURG 

4 October 2011

FINAL

04/01/2012

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Agache v. Romania,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 13 September 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 35032/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr. Aurel Dionisie Agache (“the applicant”), on 3 December 2007.

2. The Romanian Government (“the Government”) were represented by their Agent, Mr. Răzvan-Horaţiu Radu.

3. On 14 October 2009 the President of the Third Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (former Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1970 and lives in Codlea.

5. During events on 22 December 1998 the applicant’s father was murdered. By a decision of 15 February 1999 the Bucharest County Court convicted of murder five individuals, namely, F.O.D.K, P.O., H.D., R.A. and K.I., all of whom had dual Hungarian/Romanian citizenship, and ordered the joint payment of damages of 50,000.000 Romanian Lei (ROL) to the applicant and other civil parties. The decision became final on 26 March 2001 by a decision of the Supreme Court.

6. On 26 July 2001 the applicant started enforcement proceedings through a local bailiff.

7. In 2002, during the enforcement proceedings, the authorities found that three of the debtors (P.O., F.O.D.K. and K.I.) had left Romania and established their residence in Hungary.

8. On 28 March 2002 the International Relations Office within the Romanian Ministry of Justice advised the applicant to lodge, pursuant to Article 46 (b) of the Agreement of 1958 between the Popular Republic of Romania and the Popular Republic of Hungary regarding judicial assistance in civil, family and criminal trials (hereinafter “the Treaty”), a request for international judicial assistance with the first‑instance court that had ruled on the matter, to be forwarded through the Ministry of Justice, which would also provide a translation of the request and the accompanying documents.

9. On 2 December 2002 the applicant made an exequatur request and, pursuant to Article 46 (b) of the Treaty, lodged it with the Bucharest County Court. He also requested an update of the amount of damages and its equivalent in Euros.

10. On 16 June 2003 the Bucharest County Court provided the update requested. Consequently, the applicant filed another exequatur request.

11. On 17 November 2003 the Bucharest County Court issued the exequatur requested in relation to the final decision of 2001 with respect to P.O., F.O.D.K. and K.I. and sent it to the Ministry of Justice. However, since authorised translations of all the accompanying documents were not enclosed with the request, in accordance with Article 48 of the Treaty, the Ministry of Justice sent it back to the Bucharest County Court requesting it to provide the translations at the plaintiff’s expense.

12. On 12 February 2004 the Bucharest County Court sent the certified translations into the Hungarian language of the required documents to the Minister of Justice.

13. On 5 March 2004 the Minister of Justice sent to its Hungarian counterpart the exequatur request relating to the final court decision of 2001.

14. In reply to requests by the applicant for information with respect to the state of the proceedings, the Ministry of Justice informed him on April 2005 that there had been no official answer from the Hungarian Authorities but that they would pursue their contact with the Hungarian authorities and keep him informed accordingly.

15. In 2006 and 2007 the applicant renewed his request for information regarding the state of the proceedings.

16. On 14 February 2007 the Ministry of Justice informed the applicant that they had requested information from their Hungarian counterpart.

17. On 12 April 2007 the Hungarian Ministry of Justice informed the Romanian Ministry of Justice that no exequatur request relating to a court decision from Romania had been registered in their data base.

18. Following a new request from the applicant regarding the state of the proceedings, the Ministry of Justice communicated that information to the applicant by a letter of 1 June 2007.

19. On 27 June 2007 the Ministry of Justice informed the applicant that he should lodge a new application.

20. On 24 July 2007 the applicant again requested an exequatur for the judgment of 2001 from the Bucharest County Court.

21. On 11 September 2007 the Bucharest County Court issued a new exequatur request based on the Hague Convention of 28 May 1970 on the International Validity of Criminal Judgments, ratified by Romania in 2000, and sent it to the Ministry of Justice.

22. On 16 October 2007 the Ministry of Justice informed the Bucharest County Court that Hungary had not ratified the said Convention.

23. The applicant renewed his request to the Romanian Ministry of Justice for information.

24. On 7 November 2007 the Bucharest County Court issued the exequatur request and sent it to the Romanian Ministry of Justice, which on 19 November 2007 sent it back to the County Court as incomplete. The Romanian Ministry of Justice forwarded the completed file to the Hungarian authorities on 10 December 2007.

25. Throughout the months of February and May 2008 the applicant submitted to the Romanian Ministry of Justice repeated requests for information as to the state of the proceedings.

26. On 12 June 2008 the Hungarian authorities informed the Romanian party that they had received the request and the accompanying documents; however the documents did not mention the addresses of the debtors in Hungary and for this reason they were not able to establish which authority was competent to deal with the request.

27. The Romanian Ministry of Justice provided this information on 16 June 2008 and 4 July 2008 respectively.

28. On 6 August 2008 the applicant requested the Bucharest County Court to attach the decision of 16 June 2003 (stating the updated amount of the debt) to the file in the exequatur proceedings.

29. On 9 September 2008 the Bucharest County Court asked the applicant to itemise his additional expenses.

30. On 29 September 2008 the Hungarian Ministry of Justice confirmed that the request for enforcement against F.O.D.K. had been forwarded to the competent court. However, they were not able to examine the enforcement request against K.J. as the file was not complete.

31. On 29 October 2008 the Romanian Ministry of Justice communicated to the Hungarian party the court decision of 16 June 2003 regarding the updated amount for damages, as well as the note on the additional expenses.

32. On 14 July 2009 the Hungarian party informed them that the Romanian court decision of 2001 had been declared enforceable against F.O.D.K. and a bailiff had been assigned.

33. On 31 July 2009 the Romanian Ministry of Justice was informed by its counterpart that with respect to the debtor P.O. the court dealing with the application required additional information from the Bucharest County Court. This information was forwarded by the Romanian Ministry of Justice on 27 January 2010. However, meanwhile, on 28 September 2009 the debtor P.O. died.

34. On 26 November 2009 the Hungarian Ministry of Justice informed the Romanian party that with respect to J.K. the first‑instance court had declared the decision enforceable on 4 June 2009. The appellate court had set aside the order on enforceability pending submission by the Romanian first‑instance court of a certificate required by Article 54 of European Union Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It appears that meanwhile the said document had been forwarded by the applicant on 13 November 2009.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

35. The provisions of the relevant legislation read as follows:

A. The Treaty between the Popular Republic of Romania and the Popular Republic of Hungary regarding judicial assistance in civil, family and criminal cases, ratified by Decree no. 505/1958, published in the Official Journal of 17 January 1959:

Part I – General provisions

Article 3 – Contact

“1. In providing the legal assistance, the judicial institutions of the two Contracting Parties notify each other through their central bodies, to the extent that this Treaty has not established otherwise.

2. Other institutions of the two Contracting Parties which have competence in matters of civil or family law communicate with each other or with the judicial institutions through the Ministry of Justice, to the extent that this Treaty has not established otherwise.”

Article 4 – Object of the legal assistance

“Contracting Parties shall provide mutual legal assistance in the performance of procedural tasks such as preparing, sending and delivery of documents, sending or delivery of material evidence, conducting local surveys and research, and questioning the parties, defendants, witnesses, experts and other persons performing searches and seizures.”

Article 6 – Content of the request for legal assistance

“An application for legal assistance shall contain the following data:

a) the name of the originating application;

b) the name of the institution addressed;

c) the case in which legal assistance is requested;

d) the full name, address and citizenship status of the parties, accused, indicted or convicted in criminal cases and, as far as possible, the place and date of birth of the accused or defendants, and the names of their parents;

d) the name and address of their representatives;

e) necessary data as requested, subject to criminal cases, and a description of the facts.”

Section V – Exequatur requests

Article 46

“Both Contracting Parties shall recognise and approve the enforcement, within their territory: (...)

b) final judgments given in the other Contracting Party after entry into force of this Treaty, in criminal cases, regarding the obligation to compensate the victim for damage caused.”

Article 47

“1. The granting of enforcement falls within the jurisdiction of the Contracting Party in whose territory the enforcement is to be executed.

2. An enforcement request is filed with the court of first instance which ruled in the case. This request will be forwarded to the court competent to grant enforcement. The request may be submitted directly to the latter court.

3. The application shall be accompanied by a certified translation into the language of the Contracting Party on whose territory the enforcement occurs.

4. The conditions of the enforcement request are determined by the law of the Contracting Party in whose territory the enforcement occurs.“

Article 48

“1. To a declaration of enforcement must be attached:

a) the full text of the decision and proof that the decision has become final and enforceable, unless that is clear from the above;

b) the original documents, or certified copies of such documents, showing that any person concerned by a decision not to take part in the proceedings has been served with the summons at least once, on time and in due form;

c) certified translations of documents specified in paragraphs (a) and (b).”

Article 49

“1. The enforcement approval procedure and the procedure for the enforcement are determined by the law of the Contracting Party in whose territory the enforcement occurs.”

B. Law No. 189/2003 regarding international legal assistance in civil and commercial matters

Chapter I – General provisions

Article 2

“(...) 2) The provisions of this Law shall not affect bilateral or multilateral conventions to which Romania is or will become a party, but shall cover situations not covered by them.”

Chapter II – The communication of judicial and extrajudicial documents

to and from abroad

Section 2 – The communication of documents abroad

Article 5 – The Role of the Ministry of Justice and Civil Liberties

“(1) The Ministry of Justice and Civil Liberties is the central authority through which the Romanian judicial authorities communicate documents abroad.

(2) Upon receipt of documents from the Romanian judicial authority, after international regularity control, the Ministry of Justice and Civil Liberties will be able to send them, as appropriate, depending on the existence and according to the provisions of international conventions

a) by post to the named addressee;

b) to the competent central authority of the recipient State, or

c) to the Romanian diplomatic mission or consular authorities of the recipient State, through the Ministry of Foreign Affairs.”

Article 6 – Content and application form

“(...) 3) The application form shall be accompanied by the proof of communication, which will include the following:

a) the name of the requesting judicial authority;

b) the documents to be communicated;

c) the name and address of the recipient;

d) the name of the recipient judicial authority;

e) the name and status of the person who receives the documents (the relationship of the consignee to the addressee, for individuals,, or function, for legal entities);

f) the signature of the addressee (a stamp in the case of legal persons);

g) the documents being communicated;

h) reasons for non-communication (recipient’s refusal, address change etc.);

i) the agent’s signature and stamp relating to the requisite judicial procedure.”

Article 7 – Translation of the application and accompanying documents

“Unless the international Convention provides otherwise, the application and supporting documents will be translated into the language of the recipient State as follows:

a) the application for international legal assistance – by the Ministry of Justice and Civil Liberties;

b) Appendices – by the Romanian judicial authorities at the expense of the interested parties, except for cases in which parties are exempted from paying court fees;” (...)

Article 8 (1) The following shall constitute proof of documents sent abroad:

“a) when communicated by post, directly to the recipient – the confirmation of receipt;

b) communication by the central competent authority of the recipient State or of the Romanian diplomatic mission or consulate in that State – the form stipulated in Article 6 (3).”

C. Law no. 191 of June 19, 2007 approving Government Emergency Ordinance no. 119/2006 regarding measures necessary for the implementation of Community regulations on Romania’s EU accession

“Article 2 (1) In the case of judgments rendered in Romania and for which is sought recognition or enforceability in another EU member State, the power to issue, according to Article 54 of Regulation no. 44/2001, the certificate provided for in Annex V of the regulation lies with the first court.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

36. The applicant complained that lack of diligence on the part of the competent Romanian authorities in assisting him in the enforcement procedure of a judgment in his favour had infringed his rights guaranteed by Article 6 of the Convention and also his right to property as provided by Article 1 of Protocol No. 1 to the Convention. Insofar as relevant, these provisions read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

37. The Romanian Government considered the application incompatible ratione personae since the alleged violations were not imputable to the Romanian authorities because the responsibility for enforcing the court decision lay with the Hungarian authorities.

38. According to the Government, the Romanian minister had complied with all the obligations arising from the bilateral agreement by forwarding the exequatur request to the Hungarian authorities. They further argued that the applicant had not been obliged to file his request via the Romanian authorities, such a possibility being optional. The Government referred to the admissibility decision of 9 June 2005 in the case of Dumitrascu v. Romania and Turkey, where the Court had dismissed a similar complaint as incompatible ratione personae since the applicant had failed to file his request directly with the Turkish authorities in accordance with the applicable law.

39. The applicant contested any similarity to the case of Dumitrascu v. Romania and Turkey; in that case, at the request of the Turkish authorities, the applicant should have filed the exequatur request directly with the competent Turkish court, whereas in his own case the Romanian Minister of Justice had suggested he contact the competent Romanian court in order to file an exequatur request and had not considered the alternative of a direct application to the competent Hungarian court, which, according to the applicant, was in any event not feasible since the debtors’ addresses were unknown.

40. The Court observes that according to the provisions of Articles 3 and 4 of the bilateral agreement the role of the Romanian Minister of Justice is that of an intermediate authority whose role is to facilitate the enforcement process (see paragraph 35 (A) above). The Romanian Government cannot reasonably claim that the Hungarian authorities alone were responsible for the enforcement of the domestic court decision and that the role of the Romanian ministry was merely to forward the exequatur request to their counterparts. Further, the Court observes that Article 47 of the Treaty provides for the possibility of filing an exequatur request directly with the competent court. However, in the present case the Court notes that the addresses of the debtors, which determine the competent court, were not known; it was only in 2008 the Romanian authorities acknowledged the addresses (see paragraph 27 above). In addition, the Court observes that the Romanian Ministry of Justice informed the applicant that the procedure to be followed was through the Minister of Justice as an intermediate authority (see paragraph 8 above).

41. Therefore, in the light of the above, the Court concludes that the application is not incompatible ratione personae and that the Government’s objection should be dismissed.

42. The Court also notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 Merits

1. Concerning the complaint under Article 6 § 1

43. The Government argued that the authorities had fulfilled their obligations arising from the bilateral Treaty by forwarding the exequatur request to the Hungarian authorities. They argued that the provisions of the Treaty did not impose any other obligations on the Romanian authorities and it there was no obligation under the Treaty to monitor the outcome of the applicant’s request. The fact that the applicant’s exequatur request had not been registered in the data base of the Hungarian authorities was not imputable to the Romanian authorities. All the documents of the Minister of Justice had been forwarded through the Post Office and there was no obligation for the central body receiving the documents to confirm that fact. With respect to the content of the exequatur request forwarded to the Hungarian authorities, the Government noted that the large number of requests by the applicant regarding the enclosures and the debtors’ addresses were not were not imputable to the fault of the Romanian authorities, the sole responsibility of the Minister of Justice being to forward the documents, notwithstanding the fact that had been extensive correspondence between them and their Hungarian counterparts concerning the state of the proceedings. Moreover, the Government considered that Law No. 189/2003 regarding international judiciary assistance in civil and commercial matters was not applicable in the present case since it did not specifically refer to the exequatur procedure; hence the provision which provided for confirmation of the transmission of documents did not apply to the exequatur procedure.

44. The applicant contested these arguments. He argued that the Romanian authorities had failed to fulfil their obligation under the bilateral Treaty and the above-mentioned Law No. 189/2003 to assist him in the execution of a domestic court decision. He considered that the Romanian authorities had not informed him very clearly about the procedure to follow in order to obtain the enforcement of the court decision in his favour and had not acted with diligence and celerity in order to ensure the effective exchange of information and correspondence between the intermediary institution and themselves.

45. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II). However, the right of “access to court” does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of the case (Sanglier v. France, no. 50342/99, § 39, 27 May 2003).

46. The State has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). When the authorities are obliged to act in order to enforce a judgment and they fail to do so, their inactivity can engage the State’s responsibility on the ground of Article 6 § 1 of the Convention (Scollo v. Italy, 28 September 1995, § 44, Series A no. 315‑C). It is for each State to equip itself with legal instruments which are adequate and sufficient to ensure the fulfilment of positive obligations imposed upon the State (Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003). The Court’s task is to examine whether the measures applied by the Romanian authorities in the present case were adequate and sufficient. In cases such as the present one, which necessitate action by a debtor who is a private person, the State, as the agent of public authority, has to act diligently in order to assist a creditor in the execution of a judgment (Fociac v. Romania, no. 2577/02, § 70, 3 February 2005).

47. The Court notes that in the present case the applicant obtained a final court decision on 26 March 2001 ordering private individuals to pay him damages for the murder of his father. On 26 July 2001 the applicant started the enforcement procedure before the Romanian authorities. However, it was only in the course of 2009 that the Romanian authorities completed the file submitted to the Hungarian authorities in the exequatur procedure (see paragraphs 32 -34 above).

48. The Court further notes that the enforcement proceedings against three of the debtors are still pending before the Hungarian authorities. Having regard to the fact that, in accordance with the provisions of Article 49 of the bilateral Treaty (see paragraph 35 (A)), it is the law of the State of the debtor which governs the enforcement procedure, the Court will only examine whether the Romanian authorities acted diligently in order to assist the applicant in the execution of the judgment of 2001 as regards the obligations under the aforesaid Treaty and the pertinent laws in force.

49. The Court notes repeated delays in the transmission of correspondence imputable to the Romanian authorities, as a result of which the proceedings lasted at least seven and half years. It was only after repeated requests from the applicant that the Romanian Government inquired about the fate of the exequatur request and were thus informed that it had never reached the Hungarian authorities (see paragraphs 14‑17 above).

50. The Court further notes that, notwithstanding the detailed provisions of the Treaty and Law no. 189/2003 as to the procedure, form and content of such a request (see relevant domestic and international law, paragraph 35 above) there were repeated shortcomings which led to delays in the transmission of documents between the domestic authorities and to the Hungarian authorities (see paragraphs 11, 21, 22, 24, 26, 28, 30, 33 and 34 above).

51. The Court has dealt with cases raising issues similar to the ones in the present case and found violations of Article 6 § 1 of the Convention (see, among others, Dinu v. Romania and France, no. 6152/02, 4 November 2008; Orha v. Romania, no. 1486/02, 12 October 2006; and Tacea v. Romania, no. 746/02, 29 September 2005).

52. In the light of the above, the Court considers that the respondent Government has not submitted any fact or argument leading to a different conclusion in the present case.

53. The foregoing considerations are sufficient to enable the Court to conclude that in the present case the Romanian State, through its specialised bodies, did not engage all the necessary efforts to assist the applicant in the expeditious enforcement of a court decision in his favour.

There has accordingly been a violation of Article 6 § 1 of the Convention.

2. Concerning the complaint under Article 1 of Protocol No. 1 to the Convention

54. The applicant complained that the non-enforcement of the impugned judgment breached his right to property as provided by Article 1 of Protocol No. 1.

However, in view of its previous findings (see paragraphs 43‑53 above), the Court considers that it is not necessary to examine this complaint separately.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

55. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

56. The applicant claimed 2,098.80 Euros (EUR) in respect of pecuniary damage, representing the value of the debt, and EUR 162.50 representing trial fees, taking account of the update of the damage amount up to 2003. He also claimed EUR 8,000 in respect of non‑pecuniary damage.

57. The Court reiterates that, where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI).

58. As regards pecuniary damage, the Court notes that the judgment in favour of the applicant has not been enforced. However, considering the particular circumstances of the case notably that the enforcement proceedings are still pending before the Hungarian authorities and the fact that the present application is directed only against Romania, the Court will not make an award under this head.

59. The Court further considers that the applicant has suffered non‑pecuniary damage on account of the frustration caused by the length of the enforcement proceedings and the fact that the Romanian authorities have not diligently assisted him in his efforts to enforce the decision of 26 March 2001, and that this damage is not sufficiently compensated by the finding of a violation.

60. Under these circumstances, having regard to all the information at its disposal and making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 4,800 in respect of non-pecuniary damage.

B. Costs and expenses

61. The applicant also claimed EUR 650 for the costs and expenses incurred in the proceedings in the domestic courts and before this Court, representing postal expenses, translations, experts’ taxes, stamp duties and travel expenses. He submitted invoices.

62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 650 covering the costs under all heads.

C. Default interest

63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 650 (six hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliJosep Casadevall
Deputy RegistrarPresident

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