AS TO THE ADMISSIBILITY OF
by Said Mohammed HILAL
against the United Kingdom
The European Court of Human Rights (Third Section) sitting on 8 February 2000 as a Chamber composed of
Mr J.-P. Costa, President,
Sir Nicolas Bratza,
Mrs F. Tulkens,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Mr K. Traja,
Mr M. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 January 1999 by Said Mohammed Hilal against the United Kingdom and registered on 8 January 1999 under file no. 45276/99;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 1 July 1999 and the observations in reply submitted by the applicant on 24 September 1999;
Decides as follows:
The applicant is a Tanzanian national born in 1968 and currently residing in the United Kingdom subject to removal directions effective on 11 January 1999. In the proceedings before the Court he is represented by Sen & Co solicitors of Wembley, Middlesex.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in Pemba, Zanzibar in 1968.
According to the applicant, in 1992 he joined the Civic United Front (the “CUF”), an opposition party in Zanzibar. He was an active member attending meetings and contributing money to the party funds. In August 1994 the applicant was arrested by Chama Cha Mapinduzi (the “CCM”, the ruling party) officers because of his involvement with the CUF. He was detained at Madema police station in Zanzibar for 3 months where he was tortured. He was repeatedly locked in a cell full of water for days at a time so he was unable to lie down. He was hung upside down with his feet tied together until he bled through the nose and he was also subject to electric shocks.
In November 1994, the applicant states that he was released from detention following pressure from CUF leaders on the Tanzanian Government. He attended hospital where a medical officer recorded that the applicant was haemorrhaging severely through the nose as a result of his treatment and had been subject to harm endangering life.
The applicant states that his brother had been taken into detention shortly before he was. He had been ill-treated and died in January 1995 in hospital where he had been taken from prison.
Following his release, the applicant states that he only contributed funds to the CUF. In January 1995 the police came to look for him when he was out. He therefore left his home and the police detained his wife overnight and questioned his friends. He decided to leave Tanzania fearing for his safety.
On 9 February 1995, the applicant arrived in the United Kingdom and claimed asylum. A pro forma interview was held with an immigration officer that day, where he was assisted by an interpreter. According to the form, the interview was to take down the initial details of the asylum application. When asked what was the basis of his asylum claim, the officer noted “Because of the problems in the country and my safety. I have been threatened a lot by the ruling party so I decided to leave the country.” The applicant stated that he was a member of the CUF since 1992.
At the full asylum interview held on 15 March 1995, he was recorded as stating that he had had no problem in obtaining a passport as he was a businessman and that he had organised his passage to the United Kingdom himself. When asked what was the basis for his asylum claim, he stated that he had been taken away and detained for three months, from August to November 1994 at Madema police station, where he had been tortured. He had been locked in a room with a very low ceiling, where he could not stand up and then placed for one and a half days in a room filled with water up to the chest, where he could not lie down. He was taken out and then returned there, twice a week. A few days before he was released he was hung upside down and given electric shocks. He had been arrested because of giving money to the CUF. He was told that he was released because the CUF leaders approached the authorities in Dar-es-Salaam. After his release, he went to be treated at a private clinic. He produced his CUF card. He had been an ordinary member, doing nothing but giving money. He had not attended the demonstration which had been allowed. He mentioned that his brother had been arrested in January 1995 and died after being in police custody. His brother had been beaten badly and was vomiting blood, so they had released him to hospital on 20 January 1995 as they knew he was going to die. His uncle had helped him to leave, obtaining an income tax clearance and a ticket. His uncle checked in with the ticket for him and he was able to board the plane.
On 29 June 1995 the Secretary of State refused asylum. The applicant's appeal to a Special Adjudicator was dismissed on 8 November 1996. The applicant stated that the Tanzanian authorities were intercepting his mail home, knew that he had claimed asylum and had summoned his parents to explain
“about your son who is in a foreign country abusing the Government which is in power right now.”
In his decision the Special Adjudicator noted inconsistencies between the evidence given by the applicant before him and the answers given in his asylum interviews. He placed considerable weight on the fact that the applicant had not mentioned his arrest and torture at his first asylum interview and did not accept the applicant's explanation that the interviewing officer told him that it was not necessary to give details at this stage or that he was having difficulties with the interpreter. He also found that the evidence concerning his brother's arrest was contradictory and found that there was no documentary evidence by way of a death certificate being produced. He therefore did not accept that the applicant's brother was arrested, tortured or killed. He also observed that the applicant had not provided documentary evidence that the Zanzibar authorities were accusing him of tarnishing Tanzania's good name, and therefore did not accept that it existed. Looking at the evidence as a whole, he concluded that there was no well-founded fear of persecution for a Convention reason established to the required standard.
Leave to appeal to the Immigration Appeal Tribunal was refused on 10 January 1997.
The applicant obtained a copy of his brother's death certificate and a summons from the police to his parents dated 25 November 1995 requesting their attendance to explain the applicant's unlawful conduct in embarrassing the Government and country. He made representations to the Secretary of State dated 30 January 1997, providing copies and requesting that his letter be regarded as a fresh asylum application.
By letter dated 4 February 1997, the Secretary of State expressed the view that the police summons was self-serving and not significant, while the death certificate did not disclose proof that his brother, who had died of fever, was murdered by the authorities. He had accordingly decided not to treat the representations as a fresh application for asylum, but to reconsider the original asylum application on all the evidence available to him. He refused on that basis to reverse his decision.
By letter dated 4 February 1997, the applicant's representatives requested, alternatively, that the new material be referred under section 21 of the Immigration Act 1971. By letter dated 5 February 1997, the Secretary of State informed them that he had decided not to refer the material under section 21.
By letter dated 29 April 1997, the applicant's representatives submitted to the Secretary of State a medical examination report about his treatment following detention in Zanzibar, and requested that the new materials be submitted to the Special Adjudicator under section 21. They submitted further representations on 26 March 1998.
By letter dated 23 April 1998, the Secretary of State informed the applicant that he had considered the new material but this evidence did not cause him to reverse his decision to refuse asylum. He noted that the documents were available to the applicant at the time of his appeal hearing but not produced, which cast doubt on their authenticity. Even if the medical certificate and police summons were authentic however, he saw no reason why the applicant could not return to live safely and without harassment on mainland Tanzania. He refused to make a reference under section 21.
The applicant applied for leave to apply for judicial review of the Secretary of State's refusal to refer the new material to the Special Adjudicator. He contended an expert opinion confirming that the documents were genuine. The Secretary of State contended that the documents were irrelevant because the applicant could live safely on the mainland of Tanzania. He relied on a letter from the British High Commission in Tanzania dated 8 April 1998 which stated that in general there was no evidence of politically motivated detentions on the mainland, although there were “more general human rights problems such as arbitrary detentions and poor penal conditions” on the mainland.
On 1 July 1998, the application for leave was rejected by the High Court. Mr. Justice Jowitt stated:
“The Secretary of State's decision <is> that things have changed and that as matters now stand, whatever was or was not the case in November 1996 and whatever ought or ought not to have been the outcome of the appeal heard then, the applicant can safely return to his home country, provided he goes to the mainland. Having looked at the letter [from the British High Commission], I can see no arguable grounds for saying that the Secretary of State has acted with Wednesbury unreasonableness in concluding that in the light of this new material he has no need to refer the matter to the Special Adjudicator and this application must be refused.”
The applicant appealed to the Court of Appeal saying that the Secretary of State's refusal was wrong in law and “Wednesbury” unreasonable and, in proposing the mainland option, he was not complying with international obligations by failing to take into account the applicant's specific case or documentation.
On 1 December 1998, the Court of Appeal refused leave to apply for judicial review. In its judgment, it noted that the hospital records showed that his brother died of fever and did not support the applicant's evidence that his brother was tortured. Even assuming that the medical report on the applicant and the summons by the police for his parents were genuine, there was no evidence to suggest that the conclusion reached by the Secretary of State that the applicant could live without harassment on the mainland was wrong.
On 23 December 1998, the applicant was notified that he would be removed to Zanzibar on 11 January 1999.
B. Relevant domestic law and practice
Asylum applications are determined by the Secretary of State, pursuant to paragraph 328 of the Immigration Rules and section 3 of the Immigration Act 1971. Where leave to enter is refused by the Secretary of State pursuant to section 4 of the 1971 Act, the person may appeal against the refusal to a Special Adjudicator on the grounds that the removal would be contrary to the United Kingdom's obligations under the Geneva Convention (section 8 of the 1971 Act).
Appeal lies from the Special Adjudicator to the Immigration Appeal Tribunal (section 20 of the 1971 Act).
Section 21 of the 1971 Act provides:
“(1) Where in any case:
(a) an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal, or the tribunal has dismissed an appeal made to them ...; or
(b) the Appeal Tribunal has affirmed the determination of an adjudicator dismissing an appeal...the
Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal...”
Rule 346 of the Immigration Rules provides that the Secretary of State will treat representations as a fresh application if the claim advanced is sufficiently different from the earlier claim. He disregards, in considering whether to treat the representations as a fresh claim, material which is not significant, or is not credible, or was available to the applicant at the time when the previous application was refused or when any appeal was determined.
C. Relevant international materials
In January 1997 the US Department of State released the Tanzania Country Report on Human Rights Practices for 1996. It stated:
“The Government's human rights record did not improve and problems persisted. Although the 1995 multiparty elections represented an important development, citizens' right to change their government in Zanzibar is severely circumscribed. Although new opposition parties were competitive in many 1995 races and won in some constituencies, police often harassed and intimidated members and supporters of the opposition. Other human rights problems included police beatings and mistreatment of suspects, which sometimes resulted in death. Soldiers attacked civilians, and police in Zanzibar used torture, including beatings and floggings. Prison conditions remained harsh and life threatening. Arbitrary arrest and prolonged detention continued and the inefficient and corrupt judicial system often did not provide expeditious and fair trials......
Since the 1995 election, police in Zanzibar, particularly on Pemba, have regularly detained, arrested and harassed CUF members, and suspected supporters. Despite orders from the Union Government's Inspector General of Police, officers in Zanzibar continue these activities.....
.....The Wairoba Commission found that pervasive corruption affected the judiciary from clerks to magistrates. Clerks took bribes to decide whether or not to open cases and to hide or misdirect the files of those accused of crimes. Magistrates often accept bribes to determine guilt or innocence, pass sentence, withdraw charges or decide appeals......
There are reports of prisoners waiting several years for trial because they could not pay bribes to police and court officials. Authorities acknowledge that some cases have been pending since 1988. The Government initiated efforts as early as 1991 to highlight judicial corruption and increased its oversight.....
In the 2 years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both of the two main Zanzibar islands, Pemba and Ugunja. Because CUF won all 20 seats on Pemba, Pembans living on Ugunja were regarded as CUF supporters and as a result were harassed. CUF members accused police of detaining dozens of its members,........Safety is not ensured in Pemba, where security forces dispersed gatherings, intimidated and roughed up individuals.....”
In the Amnesty International Annual Report 1997 it was stated:
“Prisoners of conscience were among scores of government opponents arrested and briefly detained on the islands of Zanzibar and Pemba. Many were held without charge or trial; others faced criminal charges and were denied bail. Scores of political prisoners were tortured and ill-treated on the islands.....
Criminal charges such as sedition, vagrancy and involvement in acts of violence, often accompanied by the denial of bail for periods of two weeks or more, were also used as a method of intimidating government critics or opponents.”
In their 1998 Report Amnesty International stated:
“In December , 14 possible prisoners of conscience on Zanzibar were charged with treason and refused bail. The men, supporters of the CUF, were arrested and initially charged with sedition in November and December, during the week the CUF won a by-election to the Zanzibar House of Representatives.”
On 8 July 1998 Amnesty International issued a press release expressing concern that the vice chair-person of the CUF may be arrested on a fabricated treason charge. In Tanzania it noted treason carried a mandatory death penalty. On 24 July 1998 Amnesty called for the immediate release of 18 leading CUF members or supporters, most of them imprisoned since November 1997 on fabricated treason charges. It expressed concern about their deteriorating health and a denial of adequate medical treatment.
The 1998 US State Department Report on Tanzania noted that serious problems remained in the Government's human rights record.
“... the police regularly threaten, mistreat or beat suspected criminals during and after their apprehension and interrogation. Police also use the same means to obtain information about suspects from family members not in custody... Police in Zanzibar use torture. .. Repeated reports from credible sources indicate that the police use torture, including beatings and floggings in Zanzibar, notably on Pemba Island. Both the Zanzibar and Union Governments have denied these charges. Police have not yet explained the deaths of six detainees in the town of Morogoro who were electrocuted at the end of 1997.
Prison conditions remained harsh and life-threatening. Government officials acknowledge that prisons are overcrowded and living conditions are poor. Prisons are authorised to hold 21,000 persons but the actual prison population is estimated at 47,000.... The daily amount of food allotted to prisoners is insufficient to meet their nutritional needs and even this amount is not always provided. ... Earlier the Commissioner of Prisons stated that his department received inadequate funds for medicine and medical supplies. Prison dispensaries only offer limited treatment, and friends and family members of prisoners generally must provide medication or the funds with which to purchase it. Serious diseases, such as dysentery, malaria and cholera are common and result in numerous deaths. Guards continued to beat and abuse prisoners.
... There were no reports of political prisoners on the mainland. At the year's end, there were 18 political prisoners in Zanzibar.”
The report noted that in January 1998 the police had searched the offices of the CUF party in Tanzania and removed files. In the three years since the election in 1995, government security forces and CCM gangs harassed and intimidated CUF members on both main Zanzibar islands, Pemba and Ugunja.
The Amnesty International 1999 Report for Tanzania stated that :
“Eighteen prisoners of conscience, including three arrested during the year, were facing trial for treason on the island of Zanzibar, an offence that carries the death penalty. Scores of other opposition supporters in Zanzibar were imprisoned for short periods; some were possible prisoners of conscience. More than 300 demonstrators arrested on the mainland in the capital Dar es Salaam were held for several weeks and reportedly tortured. Conditions in some prisons were harsh...”
The eighteen prisoners, CUF members, included 15 arrested in 1997 and 3 arrested in Zanzibar in May 1998, and many had reportedly fallen ill due to denial of access to medical treatment. According to the report, the conditions in some mainland prisons amounted to cruel, inhuman and degrading treatment, which in the case of Mbeya prison led to 47 deaths in the first half of the year.
D. Reports on the situation in Tanzania provided by the parties
In a letter dated 8 April 1998, the British High Commission in Dar es Salaam commented that there were concerns about the situation in Zanzibar but that on the mainland there had been no evidence of political killings, disappearances or politically motivated arrests. There were more general human rights problems, such as arbitrary detentions and poor penal conditions, which were systemic and not related to political activity.
In a letter dated 25 May 1998, Michael Hodd of the University of Westminster commented that there was evidence of human rights violations in Zanzibar, including a list of 66 missing persons. Although there was a good human rights record on mainland Tanzania, it was possible for the Zanzibar government to demand extradition, which had been successful in the case of Abdallah Kassim Hanga, whom informed opinion reported as having been beheaded.
According to a report dated 16 March 1999 obtained by the applicant, Professor Parkin, Professor of Social Anthropology at All Souls College, Oxford, an expert on Uganda, Kenya and Tanzania, stated that while there was less likelihood of persecution on mainland Tanzania than on Zanzibar, he observed a deteriorating situation also effecting the mainland. He referred to particular members of the Zanzibari CCM visiting the mainland and harassing and persecuting CUF dissidents who had taken refuge there. The Zanzibari CUF leader was living in Dar es Salaam but only ever moved out of his apartment surrounded by CUF party aides able to protect him.
1. The applicant complains that he faces a real risk of treatment contrary to Article 3 of the Convention if removed to Tanzania and that such a removal would constitute a violation of this provision. In view of the fact that the removal was imminent he requested that the Court apply Rule 39 and that the Court seek an assurance from the United Kingdom Government that it would not remove him whilst the Court was considering his case.
2. The applicant further complains that the State has a positive obligation under Article 3. He states the State's lack of proper investigation into the possibility of a violation in the applicant's specific case in itself constituted a violation of the State's positive obligations under Article 3.
3. The applicant complains that if he were returned to Tanzania he would be charged with a criminal offence and he would not receive a fair trial before an independent and impartial tribunal within the meaning of Article 6 of the Convention.
4. The applicant states that, in the event that the court finds that the ill-treatment falls below the minimum level of severity of Article 3, his removal would constitute a violation of Article 8 of the Convention because it would expose him to treatment affecting his physical and moral integrity.
5. The applicant complains that he has been denied any effective remedy under Article 13 of the Convention for the State's failure to fully consider the risk of treatment contrary to Article 3 if he is returned.
The application was introduced on 5 January 1999 and registered on 8 January 1999.
On 8 January 1999, the President of the Third Section made an indication under Rule 39 of the Rules of Court requesting the United Kingdom not to expel the applicant pending the Court's examination of the case.
On 23 February 1999, the Court decided to communicate the application to the respondent Government and prolonged the indication under Rule 39.
The Government's written observations were submitted on 1 July 1999, after extensions of the time-limit fixed for that purpose. The applicant replied on 24 September 1999, also after an extension of the time-limit.
On 24 August 1999, the Court granted the applicant legal aid.
The applicant complains that the authorities have taken the decision to remove him to Tanzania. He invokes Articles 3, 6, 8 and 13 of the Convention, which provide as relevant:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Exhaustion of domestic remedies
The Government submit that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention, because he failed to apply for judicial review, firstly to challenge the Secretary of State's refusal in his letter of 4 February to grant him asylum on the basis of the new material and, secondly, to challenge the Secretary of State's refusal to treat the new representations as a fresh claim. In the former case, the judicial review would have proceeded on the basis of all the evidence now before the Court. In the latter case, if successful, the Government point out that the applicant would have enjoyed further possibilities of appeal against a refusal to the Special Adjudicator and Immigration Appeal Tribunal.
The applicant submits that there was no basis under the immigration rules for the new material to be admitted as the basis of a fresh claim, as they had been available at the time of the appeal hearing and also were not regarded by the Secretary of State as either significant or credible. He also submits that there is no legal basis in domestic law for challenging the refusal to reverse the decision on asylum, as the basic rule is that an applicant is entitled to make only one asylum application during his stay in the United Kingdom which the Secretary of State is obliged to consider. Accordingly, he argues that an application under section 21 of the Immigration Act 1971 to have the new material remitted to the Special Adjudicator for reconsideration was the only practicable option. He points out that the Government have not argued that he would have stood any realistic prospect of success in the applications they referred to.
The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see, amongst other authorities, the T. v. the United Kingdom judgment of 16 December 1999, to be reported in Reports 1999, § 55). Further, where there is a choice of remedies open to an applicant, Article 35 must be applied to reflect the practical realities of the applicant's position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (mutatis mutandis Airey v. Ireland judgment of 9 October 1979, Series A no. 32, § 23, No. 19092/91; Yağiz v. Turkey, dec. 11.10.93, DR 75 p. 207).
The Court recalls that following the refusal of his application for leave to appeal the applicant made further representations to the Secretary of State requesting further documentary evidence to be taken into account. When the Secretary of State refused to regard the material as disclosing a fresh claim or as grounds for reversing his own previous decision, the applicant requested that the material be referred to the Special Adjudicator for him to assess under section 21 of the 1971 Act. The applicant applied for judicial review of the Secretary of State's refusal to refer the material, and appealed to the Court of Appeal when his application was refused by the High Court.
The Court does not consider that the applicant's decision to pursue the possibility of referral under section 21 of the 1971 Act was unreasonable or incapable of furnishing him with a remedy. The Court notes that the Special Adjudicator in reaching his own decision refusing asylum had expressly stated that the lack of the death certificate and documentary evidence that the police were looking for the applicant influenced his view of the applicant's credibility. Nor does it appear to the court that, in pursuing this avenue of appeal, the applicant excluded the courts from the possibility of examining the relevant issues. The Court recalls that while the Secretary of State initially took the view that the new documents were not authentic, he later relied on his assessment that the applicant could safely be returned to mainland Tanzania as opposed to Zanzibar. The courts examined the reasonableness of this approach in the judicial review application brought by the applicant and found that the Secretary of State's view could not be said to be wrong. It is not apparent that any challenge of the Secretary of State's other decisions concerning the new material would have been any more successful, or would have been decided on the basis of any other issues.
In these circumstances, the Court finds that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.
The Government submit that the applicant does not face any risk of ill-treatment or torture contrary to Article 3 of the Convention if returned to Tanzania. They do not accept the applicant's version of events, pointing to various inconsistencies in his accounts and the lack of credibility found by the Special Adjudicator. In any event, they submit that the applicant would not be at risk on mainland Tanzania which has a good human rights record compared to Zanzibar. They do not consider that he would be at any risk of removal to Zanzibar or that the authorities in Tanzania have any special interest in detaining or harassing him.
As regards the applicant's complaints under Articles 6 and 8 of the Convention, the Government submit that they are unsubstantiated and without foundation.
Concerning the applicant's complaints under Article 13, the Government submit that judicial review furnishes an effective remedy. Where a challenge succeeds, the court will quash the decision and require the Secretary of State to reconsider the issue. Cases concerning the most fundamental human rights are given “the most anxious scrutiny” by the courts. The Government refer to previous findings of the Court to that effect in expulsion cases (see eg. Vilvarajah v. the United Kingdom judgment of 30 October 1991, Series A no 215, and D. v. the United Kingdom judgment of 2 May 1997, Reports 1997-III, p. 777).
The applicant submits, invoking Article 3 of the Convention, that his removal to Tanzania would place him at risk of torture or inhuman and degrading treatment. He claims that he has already been tortured by the police on Zanzibar and that his brother has died under torture. A summons from the police to his parents show that he is still wanted by them. Even if returned to mainland Tanzania, he would be at risk of persecution for bringing the country into disrepute and possible removal to Zanzibar. Also CCM Zanzibaris are known to visit mainland Tanzania and threaten and ill-treat CUF supporters there.
The applicant argues under Article 6 of the Convention that he would not receive a fair trial if he was arrested for a criminal offence on his return. He refers to reports that the judicial system in Tanzania is tainted by corruption. Under Article 8, he submits that the removal will have a severely damaging effect on his private life in the sense of his moral and physical integrity. Finally, he submits under Article 13 that judicial review does not furnish an effective remedy for his complaints as the courts will not examine the issues of fact regarding the actual consequences of his removal.
The Court finds that serious issues of fact and law arise under the Convention which should be examined on the merits. The application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
S. Dollé J.-P. Costa
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