FIFTH SECTION
CASE OF DUDEK v. GERMANY
(Applications nos. 39778/07, 11171/08, 43336/08, 52719/08, 15895/09, 16123/09, 16127/09, 16129/09, 27529/09, 27533/09 and 27596/09)
JUDGMENT
This version was rectified on 8 February 2011
under Rule 81 of the Rules of the Court
STRASBOURG
16 December 2010
This judgment is final but it may be subject to editorial revision.
In the case of Dudek v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mark Villiger, President,
Renate Jaeger,
Isabelle Berro-Lefèvre, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 23 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in eleven applications (nos. 39778/07, 11171/08, 43336/08, 52719/08, 15895/09, 16123/09, 16127/09, 16129/09, 27529/09, 27533/09 and 27596/09) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Henry Dudek (“the applicant”), between 10 July 2007 and 26 August 2008 respectively.
2. The applicant was represented by Noreck Hoyer Dudek, a firm of lawyers practising in Hannover. The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.
3. On 25 August 2009 the President of the Fifth Section communicated the complaints regarding the length of the proceedings to the Government. In accordance with Protocol no. 14, the applications were allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASES
4. The applicant was born in 1947 and lives in Lohne. He is a dentist and member of the Lower Saxony Association of Contractual Dentists (Kassenzahnärztliche Vereinigung Niedersachsen) (“the Association”), the self-governing body of the contractual dentists practising in the Land Lower Saxony. The Association is responsible for, inter alia, entering into contracts with public health insurers on behalf of its members, checking costs claimed by its members, distributing reimbursements for contractual work paid by public health insurers, and allocating the effects of austerity measures in the public health sector among its members.
1. Application no. 39778/07
5. On 19 June 2002 the applicant brought an action against the Lower Saxony AOK- Die Gesundheitskasse, a public health insurance company, before the Hanover Social Court (“the Social Court”), seeking assistance in the institution of compensation proceedings for alleged mistreatment of his mother during hospitalisation preceding her death caused by cardiac arrest at the age of 83.
6. On 10 December 2002 the Social Court dismissed the action.
7. On 5 February 2003 the applicant appealed. The Lower Saxony‑Bremen Social Court of Appeal (“the Social Court of appeal”) held oral hearings on 30 September 2005 and on 18 April 2007. It dismissed the appeal on the last-mentioned date, holding that the respondent had sufficiently assisted the applicant by commissioning an expert opinion and declaring the applicant's further complaints inadmissible because they had not been raised before the Social Court.
8. On 13 May 2007 the applicant lodged a constitutional complaint.
9. On 26 July 2007 the Federal Constitutional Court declared the applicant's constitutional complaint inadmissible without giving further reasons (1 BvR 1800/07).
2. Application no. 11171/08
10. On 30 March 1999 the Association determined the applicant's remuneration as a contractual dentist for the year 1998.
11. On 28 April 1999 the applicant made an unsuccessful administrative complaint.
12. On 20 October 1999 he brought an action against the Association before the Social Court which suspended the proceedings at the parties' request on 22 April 2003.
13. On 29 August 2005 the Association modified the impugned decision, stipulating that the applicant was entitled to 195,769.35 Deutschmarks (DEM) of the DEM 207,892.64 claimed.
14. On 26 September 2007 the Social Court dismissed the action after having rescheduled an oral hearing at the applicant's request. The applicant's requests for rectifications of the judgment and the transcript of the hearing were to no avail. His attempts to institute criminal proceedings against the presiding judge were unsuccessful.
15. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal.
16. Furthermore, the applicant unsuccessfully pursued inactivity and constitutional complaint proceedings before the Social Court of Appeal and the Federal Constitutional Court.
3. Application no. 43336/08
17. On 29 March 2005 the Association determined the applicant's remuneration as a contractual dentist for the year 2004, stipulating that he was entitled to 204,324.53 Euros (EUR) of the EUR 221,875.07 claimed.
18. On 7 April 2005 the applicant made an unsuccessful administrative complaint.
19. On 10 March 2006 he brought an action against the Association before the Social Court, which rejected the claim on 26 September 2007.
20. The applicant appealed before the Social Court of Appeal.
21. On 23 April 2008 the Federal Constitutional Court declared the applicant's constitutional complaint that the Social Court had taken no action manifestly inadmissible as clearly insufficiently substantiated and imposed a fine of EUR 1,000 for abuse of process (1 BvR 917/08).
22. On 7 May 2008 the Social Court dismissed the applicant's request for rectification; the applicant's appeal against that decision was to no avail.
23. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal.
4. Application no. 52719/08
24. On 5 April 2000 the Association provisionally determined the applicant's remuneration as a contractual dentist for 1999. According to the decision the applicant was entitled to DEM 515,581.04 of the DEM 721,628.35 claimed.
25. On 18 April 2000 the applicant made an unsuccessful administrative complaint.
26. On 17 April 2001 he brought an action against the Association before the Social Court, which granted the action in part on 30 June 2004.
27. On 13 July 2004 the applicant appealed before the Social Court of Appeal.
28. On 6 April 2006 the Association rendered a final decision which supplanted the impugned decision.
29. On 9 April 2008 the Social Court of Appeal dismissed the appeal. On 30 April, 18 June and 11 August 2008 the Social Court of Appeal dismissed challenges for bias against three of its judges; the applicant's appeals for the right to be heard against these decisions were to no avail. On 7 November 2008 the Social Court of Appeal dismissed the applicant's requests for rectification of the judgment and the transcripts.
30. On 17 June 2009 the Federal Social Court refused leave to appeal on points of law.
5. Application no. 15895/09
31. On 29 March 2000 the Association, in applying a decision of its council on the allocation of the effects of austerity measures for contractual dentists among its members, provisionally deducted DEM 13,657.06 from the amount claimed by the applicant in respect of his remuneration as a contractual dentist for 1999.
32. On 18 April 2000 the applicant made an unsuccessful administrative complaint.
33. On 11 June 2001 he brought an action against the Association before the Social Court which was dismissed on 5 November.
34. On 19 November 2003 the applicant appealed before the Social Court of Appeal.
35. On 26 February 2004 the Association amended the impugned decision.
36. On 13 January 2006 the Social Court of Appeal suggested a friendly settlement.
37. On 6 April 2006 the Association replaced the impugned decision.
38. On 9 April 2008 the Social Court of Appeal dismissed the appeal as inadmissible. On 7 November 2008 it dismissed the applicant's request for rectification and as inadmissible the applicant's appeal for the right to be heard. The applicant's challenges for bias against two judges were unsuccessful, as were his appeals for the right to be heard against these decisions.
39. On 17 June 2009[1] the Federal Social Court refused leave to appeal on points of law.
6. Application no. 16123/09
40. On 28 March 2001 the Association provisionally determined the applicant's remuneration as a contractual dentist for the year 2000, stipulating that he was entitled to DEM 527,171.48 of the DEM 674,102.66 claimed.
41. On 9 April 2001 the applicant made an unsuccessful administrative complaint.
42. On 15 May 2002 he brought an action against the Association before the Social Court which was dismissed on 29 September 2004.
43. On 25 October 2004 the applicant appealed before the Social Court of Appeal, which dismissed the applicant's appeal on 25 February 2009.
7. Application no. 16127/09
44. On 26 March 2002 the Association provisionally determined the applicant's remuneration as a contractual dentist for 2001, stipulating that he was entitled to DEM 478,222.72 of the DEM 563,511.30 claimed.
45. On 5 April 2002 the applicant made an unsuccessful administrative complaint.
46. On 2 July 2002 he brought an action against the Association before the Social Court which was dismissed on 28 July 2004.
47. The applicant appealed before the Social Court of Appeal. On 18 July 2005 the Social Court of Appeal stayed the proceedings and resumed them on 25 August 2005. On 12 May 2010 it dismissed the applicant's appeal.
8. Application no. 16129/09
48. On 19 April 2002 the Association dismissed the applicant's request for a hardship allowance for 2000.
49. On 29 April 2002 the applicant made an unsuccessful administrative complaint.
50. On 22 August 2002 the applicant brought an action against the Association before the Social Court, which dismissed the action on 25 October 2006.
51. On 15 November 2006 the applicant appealed before the Social Court of Appeal, which dismissed the appeal on 12 May 2010, after having previously dismissed the applicant's challenges for bias against two judges and his appeals for the right to be heard against these decisions.
9. Application no. 27529/09
52. On 5 April 2000 the Association determined the applicant's remuneration as a contractual dentist for the year 1999.
53. On an unspecified date the applicant made an administrative complaint which was dismissed on 24 March 2004.
54. On 1 April 2004 the applicant brought an action against the Association before the Social Court, which dismissed the action on 26 September 2007.
55. On 23 April 2008 the Federal Constitutional Court declared the applicant's constitutional complaint that the Social Court had taken no action manifestly inadmissible as clearly insufficiently substantiated, and imposed a fine of EUR 1,000 for abuse of process (1 BvR 918/08).
56. On 25 April 2008 the Social Court dismissed the applicant's request for rectification; his appeal against that decision was to no avail.
57. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal against the judgment of 26 September 2007.
10. Application no. 27533/09
58. On 23 March 2004 the Association determined the applicant's remuneration as a contractual dentist for the year 2003. According to the decision the applicant was entitled to payment of EUR 181,976.50 of the EUR 198,310.84 claimed.
59. On 1 April 2004 the applicant made an unsuccessful administrative complaint.
60. On 25 May 2004 he brought an action against the Association before the Social Court, which dismissed the action on 26 September 2007.
61. On 23 April 2008 the Federal Constitutional Court declared the applicant's constitutional complaint that the Social Court had taken no action manifestly inadmissible as clearly insufficiently substantiated and imposed a fine of EUR 1,000 for abuse of process (1 BvR 916/08).
62. On 6 May 2008 the Social Court dismissed the applicant's request for rectification; the applicant's appeal against that decision was to no avail.
63. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal.
11. Application no. 27596/09
64. On 27 March 2003 the Association determined the applicant's remuneration as a contractual dentist for the year 2002, stipulating that he was entitled to EUR 204,249.46 of the 229,852.22 claimed.
65. On 2 April 2003 the applicant made an unsuccessful administrative complaint. On 7 August 2003 he brought an action against the Association before the Social Court, which dismissed the action on 26 September 2007.
66. On 18 April 2008 the Federal Constitutional Court declared the applicant's constitutional complaint that the Social Court had taken no action inadmissible, without giving further reasons (1 BvR 851/08).
67. On 6 May 2008 the Social Court dismissed the applicant's request for rectification; the applicant's appeal against that decision was to no avail.
68. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
69. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
70. The Government, while acknowledging that the length of the proceedings at issue had been excessive and therefore refraining from making additional legal arguments, submitted that the applicant had been responsible for some of the delays in the proceedings at issue.
1. Application no. 39778/07
71. The period to be taken into consideration began on 19 June 2002 and ended on 26 July 2007. It thus lasted five years, one month and six days for three levels of jurisdiction, with the proceedings before the Social Court of Appeal lasting for four years, two months and 12 days.
2. Application no. 11171/08
72. The period to be taken into consideration began on 28 April 1999 and ended on 12 May 2010. It thus lasted eleven years and 17 days for three levels of jurisdiction, including inactivity proceedings before the Social Court of Appeal and proceedings before the Federal Constitutional Court.
3. Application no. 43336/08
73. The period to be taken into consideration began on 7 April 2005 and ended on 12 May 2010. It thus lasted five years, one month and six days for three levels of jurisdiction, including proceedings before the Federal Constitutional Court.
4. Application no. 52719/08
74. The period to be taken into consideration began on 18 April 2000 and ended on 17 June 2009. It thus lasted nine years and just under two months for three levels of jurisdiction.
5. Application no. 15895/09
75. The period to be taken into consideration began on 18 April 2000 and ended on 17 June 2009. It thus lasted nine years and just under two months for three levels of jurisdiction.
6. Application no. 16123/09
76. The period to be taken into consideration began on 9 April 2001 and ended on 25 February 2009. It thus lasted seven years, ten months and
20 days for two levels of jurisdiction.
7. Application no. 16127/09
77. The period to be taken into consideration began on 5 April 2002 and ended on 12 May 2010. It thus lasted eight years, one month and eight days for two levels of jurisdiction.
8. Application no. 16129/09
78. The period to be taken into consideration began on 29 April 2002 and ended on 12 May 2010. It thus lasted eight years and 15 days for two levels of jurisdiction.
9. Application no. 27529/09
79. The period to be taken into consideration began on 24 March 2004 and ended on 12 May 2010. It thus lasted six years, one month and 19 days for three levels of jurisdiction, including proceedings before the Federal Constitutional Court.
10. Application no. 27533/09
80. The period to be taken into consideration began on 1 April 2004 and ended on 12 May 2010. It thus lasted six years, one month and 11 days for three levels of jurisdiction, including proceedings before the Federal Constitutional Court.
11. Application no. 27596/09
81. The period to be taken into consideration began on 2 April 2003 and ended on 12 May 2010. It thus lasted seven years, one month and eleven days for three levels of jurisdiction, including proceedings before the Federal Constitutional Court.
A. Admissibility
82. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
83. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
84. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).
85. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, while the Court accepts the Government's submission that the applicant contributed to the overall length of the different sets of proceedings by his frequent requests for rectification, challenges for bias and unsuccessful appeals for the right to be heard, it nevertheless finds that the majority of the delays are attributable to the Government. Having regard to its case-law on the subject, the Court considers that in the instant case the respective length of the different sets of proceedings was excessive and failed to meet the “reasonable time” requirement.
86. The Court further observes that the applicant's constitutional complaints that the Social Court had taken no action were not effective remedies against excessive length of proceedings before the social courts (compare Sürmeli v. Germany [GC], no. 75529/01, § 108, ECHR 2006‑VII).
87. There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATIONS OF ARTICLE 2, 3, 10, 13 AND 14 TO THE CONVENTION AS WELL AS ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
88. In application no. 39778/07 the applicant further complained about violations of Articles 2, 3, 10, 14 and 17 of the Convection. In several other applications, he also complained about violation of Article 13 of the Convention because his appeals and appeals for the right had been dismissed and of Article 1 of Protocol No. 1 to the Convention in view of deductions made by the Association from the sums claimed by him.
89. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
90. It follows that these complains are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
91. 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.”
92. The applicant claimed at least EUR 440,000 in respect of non‑pecuniary damage concerning all eleven applications (no. 39778/07: EUR 100,000; nos. 52719/08, 15895/09, 16123/09, 16127/09, 16129/09, 27529/09, 27533/09 and 27596/09: at least EUR 40,000; nos. 11171/08 and 43336/08: at least EUR 30,000).
93. The Government considered the claims to be excessive but left the matter to the Court's discretion.
94. Having regard to its case-law on the subject and ruling on an equitable basis, the Court awards the applicant EUR 30,000 in respect of non-pecuniary damage.
95. The applicant further claimed the following sums in respect of pecuniary damage.
96. In applications nos. 43336/08, 52719/08, 15895/09, 16123/09, 16127/09, 16129/09, 27529/09, 27533/09 and 27596/09 he claimed EUR 375,660.60 for the purchase of his dental practice (a loan of EUR 217,299.05 for the purchase price; EUR 150.805.54 interest paid on the loan; and EUR 7,562.01 for the real estate agent's fee) as well as EUR 700,000 or, alternatively, EUR 3,500 per month with a price adjustment clause in respect of loss of pension rights, since he was only entitled to a pension of EUR 398.39 per month under the public pension scheme.
97. The applicant further claimed the following sums which appear to be the difference between the sums to which the applicant considered himself to be entitled because of his work as a contractual dentist and those allocated to him by the Association. In application no. 11171/08 he claimed DEM 16,000 (= EUR 8,180.67) with interest as of 1 April 1999, in application no. 43336/08 EUR 17,550.54 with interest as of 1 May 2005, in application no. 52719/08 DEM 231,219.70 (= EUR 118,220.76) with interest as of 1 April 2000, in application no. 27529/09 the same amount minus EUR 30,140.92 (i.e. a hardship allowance granted by the Association in 2004), in application no. 15895/09 DEM 15,630.33 (= EUR 7.991,66) with interest as of 1 March 2000, in application 27533/09 EUR 16,334.34 with interest as of 1 April 2004, in application no. 27596/09 EUR 25,602.76 with interest as of 1 April 2004, and in applications no. 16123/09, 16127/09 and 16129/09 DEM 146,931.18 (= EUR 75.124,72) with interest as of 1 April 2004, respectively.
98. The Government contested the existence of a causal link between the damage claimed and the length of the proceedings at issue. The Government further submitted that the applicant had not substantiated his claim as regards the pension entitlement for he had only tendered a partial copy of a document outlining his entitlements under the compulsory pension scheme. As a dentist, however, the applicant was free to opt out of the compulsory pension scheme and contribute to a private pension scheme, such as the one for dentists of which the applicant was presumably a member.
99. The Court is not persuaded that the sums claimed for the purchase of the dental practice have a connection with the length of the proceedings that started after these sums had been incurred.
100. As regards the difference between the sums claimed and paid out to the applicant, the Court observes that the applicant in any event could claim these sums only once and not several times for each set of proceedings concerned with aspects of the remuneration for a given period. The damage claimed was in any event not caused by the length of proceedings at issue but by the application of the applicable rules on remuneration for contractual dentists, the legality of which was in dispute between the applicant the Association.
101. Insofar as the loss of pension entitlements is concerned, the Court concludes for the reasons submitted by the Government that the applicant failed to substantiate his claim.
102. The claim in respect of pecuniary damage must accordingly be rejected in its entirety.
B. Costs and expenses
103. The applicant did not claim reimbursement for cost and expenses incurred in the proceedings before the Court. The Court accordingly makes no award under this head.
104. The applicant claimed the following sums for the costs and expenses incurred in proceedings before the domestic courts. He claimed EUR 2,116.20 for two fines of EUR 1,000 which had been imposed by the Federal Constitutional Court for abuse of process with execution costs of EUR 58.10 (applications no. 43336/08 and 27529/09). He further claimed EUR 3,000 for the costs of counsel before the Federal Social Court; as proof he submitted a copy of a bank remittance slip (no. 52719/08). He further claimed EUR 9,645 for court fees imposed by the social courts (application no. 27529/09: EUR 1,668; nos. 15895/09, 16123/09, 16127/09 and 16129/09: EUR 1,592; nos. 43336/08, 27533/09 and 27596/09: EUR 543). He lastly claimed EUR 375 for inadmissible legal remedies he had pursued following incorrect advice by either the Social Court or the Federal Constitutional Court (application no. 11171/08: EUR 175; no. 433336/08: EUR 100; nos. 27533/09 and 27596/09: EUR 50 each).
105. The Government contested these claims.
106. The Court has consistently held that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003-VIII).
107. As regards the two fines of EUR 1,000 imposed by the Federal Constitutional for abuse of process as well as EUR 58.10 execution costs, and being mindful that such fines may be characterised as extraordinary court fees (compare Matterne (V) v. Germany (dec.), no. 4041/06, 13 October 2009), the Court observes that the fines were imposed for having lodged clearly inadmissible constitutional complaints. The applicant did not demonstrate that the length of the proceedings before the social courts prevented him from lodging constitutional complaints in conformity with the procedural requirements under German law. These costs were thus not necessarily incurred.
108. As regards the sum of EUR 3,000 for legal fees paid to counsel in regard to leave to appeal on points of law proceedings before the Federal Social Court, the Court notes that the applicant did not submit an invoice by counsel. Even assuming that the costs were actually incurred, the Court cannot assess whether the costs were reasonable as to quantum in the absence of an invoice.
109. As regards the court fees imposed by the social courts, the Court observes that the applicant was ordered to pay these fees because of his appeals not because of the length of the proceedings at issue. It follows that the applicant did not establish that these sums were related to the violation found.
110. As regards the sum claimed for inadmissible legal remedies the applicant had pursued following incorrect advice by either the Social Court or the Federal Constitutional Court, the Court notes that these sums were incurred because of the instructions on the right to appeal given by the Social Court or the instructions which the applicant had deducted from the reasons given by the Federal Constitutional Court for dismissing as inadmissible his constitutional complaints. It follows that the applicant did not establish that these sums were related to the violation found.
111. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that the applicant has not established that the costs and expenses claimed for the proceedings before the domestic courts were actually and necessarily incurred, were reasonable as to quantum and related to the violation found. The applicant's claim for costs and expenses incurred in the proceedings before the domestic courts must accordingly be rejected.
C. Default interest
112. 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. Decides to join the applications;
2. Declares the complaints concerning the excessive length of the proceedings admissible and the remainder of the applications inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months
(i) EUR 30,000 (thirty thousand euros) in respect of non-pecuniary damage;
(ii) any tax that may be chargeable;
(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 16 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsMark Villiger Deputy Registrar President
[1] Rectified on 8 February 2011 : the text was "2010"
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