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Poroshenko submits urgent “Citizenship” Bill (6175)

March 13, 2017

A few days ago an entry appeared relating to the suspended and currently (perhaps temporarily) incarcerated Roman Nasirov and his UK citizenship.

While that entry pondered the issues over the UK Bribery Act therefore being applicable to every dodgy and unscrupulous deal Mr Nasirov has engaged in, it also mentioned the fact that Ukrainian law prevents civil servants from holding dual nationality.

In short a Ukrainian can become a civil servant, and remain one, when only holding Ukrainian citizenship.  Well so be it.  It is a decision made by any applicant to join the civil service in Ukraine.

Since the Nasirov citizenships (plural) have become public knowledge, numerous (populist and otherwise) parliamentarians have called for a law to proscribe that all parliamentarians can only hold Ukrainian citizenship – and that those found transgressing such a law have their mandate removed.

Quite right too.

There are certain roles within the State and its apparatus, both public mandate and institutional, that should demand only Ukrainian citizenship to hold those positions.  Ergo, that is part of the terms and conditions for the job – and indeed should be clearly written into statute.

It appears President Poroshenko has entered the citizenship fray (seemingly blurring the constitutional lines between parliamentary responsibilities and those of President once again) but with such a high profile case as the political backdrop he will have wanted to be seen to be doing something.

Bill 6175 has been urgently submitted by the President to the Verkhovna Rada.  A timely reader will note that when this entry was published, the Bill is decidedly lacking in the actual text submitted.  It may appear somewhat later – or not.

Thus a reader is left to wonder on its contents via the comments of Block Poroshenko MP Anton Gerasimov who has stated  – “Today, 13 March, the president has submitted to the parliament what is defined as an urgent bill, which deals with solutions to the dual citizenship problem.  

This bill is clearly established that the person voluntarily entered into the citizenship of another state, will be considered subject to the requirements of termination of Ukrainian citizenship.”

Well fair enough.  Doesn’t Article 4 of the Constitution make clear – “There is single citizenship in Ukraine. The grounds for the acquisition and termination of Ukrainian citizenship are determined by law.

Perhaps – or perhaps not.

It may be interpreted that in the event of any Ukrainian holding more than one citizenship, Ukraine will recognise only that they are Ukrainian.

And there may be something of a Constitutional problem with the “The grounds for the……..termination of Ukrainian citizenship are determined by law” text if President Poroshenko is proposing the forced removal of Ukrainian citizenship for those holding another.

Article 25 of the Constitutions is explicit – “A citizen of Ukraine shall not be deprived of citizenship and of the right to change citizenship.

Thus Article 4 of the Constitution appears to irritatingly rub against Article 25.

What if a Ukrainian holds one (or more) other citizenships (as many, many thousands of Ukrainians do) but doesn’t want to willfully give up either?

As all Ukrainian statutory law is subordinate to the Constitution, if Article 25 so unambiguously states a Ukrainian shall not be deprived of citizenship, what statutory law provided for under Article 4 – including the President’s “urgent Bill 6175” – can overcome Article 25?

Surely any attempt to strip a Ukrainian of their citizenship against their will is guaranteed to result in a constitutional challenge and ultimately at the ECfHR if the court agrees to remove citizenship?

Jerking knees and wanting to be seen to do something aside, is it not wiser to consider a list of public roles that can be subjected to statutory limitations regarding the singular and solitary holding of Ukrainian citizenship – and continue the existing policy (official or otherwise) of only recognising the Ukrainian citizenship of those that hold others too?

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A first: The HCJ clears the way for a judicial detention (in Odessa)

March 12, 2017

As part of the on-going (and somewhat glacial) reform of the Ukrainian judiciary, the 12th January 2017 saw a body known as the High Council of Justice begin working.

New legislation provides the HCJ with the power to allow a judge to be arrested,  detained and dismissed.

The legislation also insured a collegial, constitutional, independent body would, so far as is possible, be just that – independent.

Some months after it began operating, the HCJ has granted a PGO appeal by Dmitry Storozhuk to allow the detention of Konstantine Bobovskogo, a well known judge from the Suvorov District Court in Odessa, who on 1st November 2016, in cahoots with a lawyer, was caught soliciting a bribe of $2,000 from a defendant to insure incarceration was not a judicial outcome.

(Needless to say he is well known for the wrong reasons like so many (but not all) judges in Odessa.)

The first HCJ decision relating to any judge in Ukraine happens to be the granting of Konstantine Bobovskogo’s detention – and rightly so, for the learned Judge will be a high probability flight risk.  Not only that, should Mr Bobovskogo have remained at liberty (no matter if it be a restricted liberty), he is certainly likely to attempt to coerce  his colleagues, interfere with witnesses and attempt to tamper with (destroy) evidence.  Self preservation is a real motivator after all.

If only Judge Bobovskogo was the worst of the worst in Odessa, for then this very positive and precedent setting act by the HCJ would have more resonance within society.  Though he is far from being fit to hold such office and should be incarcerated, he is not the most corrupt judge on the Odessa circuits – that is a title with several contenders who dwell in Dante circles far, far lower.

Nevertheless, the HCJ can only consider those PGO requests put before it – and they are thus far one for one, as Judge Bobovskogo was the first PGO request put before the HJC and became the first to be granted.

A reader will probably be wondering why there are not dozens of such PGO requests with the HCJ – and rightly so.  Nevertheless, as with all precedents, observing due process take its course from start to finish may be a wise thing to do.

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Nasirov and the UK Bribery Act 2010

March 11, 2017

It has been a week since the last entry relating to the arrest and detention of Roman Nasirov, (suspended) Head of the Ukrainian State Fiscal Service.

A few days hence his appeal to have detention replaced by something less restrictive occurs, and no doubt those within the Ukrainian political and business elite who conspired to have him walk before a judge could be found to remand him will be busying themselves attempting to create an opportunity for him to be released on bail/electronic tag/house arrest etc from whence he can disappear.

Few from such circles would relish the thought of Mr Nasirov’s tongue loosening in search of a plea bargain.

Equally, as Mr Nasirov’s incarceration was the result of the constituency and civil society out maneuvering a conspiratorial elite, a reader can expect nothing but his continued detention will pacify them – and NABU who arrested him and consider him a flight risk – quite rightly.

However, theoretically it is not only Ukraine that can take a pound of Nasirov flesh.

Unconstitutionally, and also in violation of the Ukrainian Civil Service Law, Mr Nasirov holds the citizenship of other nations.  One being Hungary and the other the United Kingdom.

Putting Hungarian citizenship to one side, a reader may ponder just how Mr Nasirov is a UK Citizen?

Grandfather rights?  Is there a Grandfather or Grandmother in his family tree that was British thus affording him the opportunity to hold UK citizenship?  At the time of writing it appears not from all available OSINT (including his e-declaration).

Has he provided some form of spectacularly beneficial assistance to certain UK agencies that, as part of any arrangement, resulted in UK citizenship?  Unlikely in the extreme – in fact it’s even less likely than that!

What seems more likely is that he bought his UK citizenship as many from this part of the world that can afford it do.  It is not a swift or cheap process, but the UK takes a certain pride in the quality of thieves and money launderers it gives citizenship to.  Regardless, buying UK citizenship can be done if you are rich enough.

Naturally if Mr Nasirov took this route then questions are to be asked where such wealth came from to facilitate the purchase of UK citizenship.

To be clear, the above links relate to the current rules that took effect from 2014 – Mr Nasirov has a UK passport (passport number 5084080) issued in May 2012, so slightly different rules will have then applied.

To avoid any doubt the UK has promptly and officially confirmed Mr Nasirov holds UK citizenship to the Ukrainian agencies.

Thus regardless of whether Mr Nasirov ever gets convicted – or not, his tenure in his role cannot continue under the laws of Ukraine due to his holding other citizenships.

Cynically, a reader may ponder whether Mr Nasirov has requested consular assistance from the UK since his detention, and further, whether the UK was a potential direction of flight should he be given the opportunity to (try) and evade justice.

Yet Mr Nasirov’s UK citizenship, if the UK had a mind to set an example for those that buy it, also comes with the legislative baggage of being a UK citizen – and unfortunately for Mr Nasirov that includes the UK Bribery Act 2010.

The UK Bribery Act is one of those rare British laws that extends beyond the territory of the UK but travels with the citizen.  Thus any acts of bribery, giving or receiving, be the reward financial or in another form, in which Mr Nasirov is complicit in Ukraine (or elsewhere), is also criminal offence in the UK for which he can be dealt with there.

Having had numerous private discussion with diplomats when Mr Nasirov’s shenanigans have been mentioned, that he has fallen foul of the Bribery Act has a very high probability.  Rather than simply link to the statue, a link to the statute with explanatory notes is perhaps better – some key points below:

Offences relating to being bribed

(1)A person (“R”) is guilty of an offence if any of the following cases applies.

(2)Case 3 is where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person).

(3)Case 4 is where—

(a)R requests, agrees to receive or accepts a financial or other advantage, and

(b)the request, agreement or acceptance itself constitutes the improper performance by R of a relevant function or activity.

(4)Case 5 is where R requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance (whether by R or another person) of a relevant function or activity.

(5)Case 6 is where, in anticipation of or in consequence of R requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly—

(a)by R, or

(b)by another person at R’s request or with R’s assent or acquiescence.

(6)In cases 3 to 6 it does not matter—

(a)whether R requests, agrees to receive or accepts (or is to request, agree to receive or accept) the advantage directly or through a third party,

(b)whether the advantage is (or is to be) for the benefit of R or another person.

(7)In cases 4 to 6 it does not matter whether R knows or believes that the performance of the function or activity is improper.

(8)In case 6, where a person other than R is performing the function or activity, it also does not matter whether that person knows or believes that the performance of the function or activity is improper.

And to be clear about legislative jurisdiction:

Function or activity to which bribe relates

(1)For the purposes of this Act a function or activity is a relevant function or activity if—

(a)it falls within subsection (2), and

(b)meets one or more of conditions A to C.

(2)The following functions and activities fall within this subsection—

(a)any function of a public nature,

(b)any activity connected with a business,

(c)any activity performed in the course of a person’s employment,

(d)any activity performed by or on behalf of a body of persons (whether corporate or unincorporate).

(3)Condition A is that a person performing the function or activity is expected to perform it in good faith.

(4)Condition B is that a person performing the function or activity is expected to perform it impartially.

(5)Condition C is that a person performing the function or activity is in a position of trust by virtue of performing it.

(6)A function or activity is a relevant function or activity even if it—

(a)has no connection with the United Kingdom, and

(b)is performed in a country or territory outside the United Kingdom.

(7)In this section “business” includes trade or profession.

Ho hum!

Technically and by the letter of the law Mr Nasirov, UK citizen, should rightly be under investigation in the UK – and while there is no difference between theft of a $1 Mars Bar and theft of $2 million as theft is still theft, the financial gravity of Mr Nasirov’s nefariousness naturally magnifies perceptions of a need to take determined action.

So will the UK apply its own Bribery Act to one of its citizens who prima facie, and as undoubtedly outlined in numerous communiques from UK Embassy Kyiv to FCO King Charles Street (as well as other agency reports) , will have fallen foul (more than once and resulting in significant consequences) of the Bribery Act 2010?

Naturally Ukraine should be given first bite at the Nasirov cherry – yet few expect Ukraine to actually manage to get the case (at least with Mr Nasirov in attendance) to a verdict and sentencing.  His disappearance if released and a trial in absentia (if the case got that far) is more probable when considering that nobody of senior position goes to jail under President Poroshenko.

The question therefore is whether the UK should begin its own investigation of crimes committed under its own legislation in support of the Ukrainian people?  If it did so then it may psychologically cause a rethink regarding any sanctuary in Europe that may be circulating within Mr Nasirov’s head.  The UK doesn’t raise many EAWs  – but is almost certain to be effectively executed when it does making Europe somewhat less attractive to hide in.

One wonders after numerous hours spent with UK diplomats over the years, notwithstanding a sprinkling of UK politicians and an occasional Lord all ruminating upon what can be done to aid Ukraine in its fight against corruption if this option will be pursued.  Itt’s not often they will get the chance to look at one of Ukraine’s most powerful office holders under due process of UK legislation.

The question is will they do it, or will the UK consider it a possible politically expedient exit for some very unwilling Ukrainian elites in this case?

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Moldova tells the Tsar his underlings are being naughty

March 9, 2017

A very unusual public statement appeared on the website of the Moldovan parliament, seemingly following the passing of a diplomatic note to the Russian Ambassador to Moldova during a top level meeting.

In summary at least 25 Moldavian officials have been subjected to harassment by Russian institutions when entering and/or exiting Russia, the statement claiming that one particular Moldavian official had been subjected to harassment 35 times – thus far.

Not only has the general harassment been frequent, it has been escalating – unsurprisingly coinciding with the Moldavian investigation into Russian money laundering ($22 billion) through Moldavian banks.

So what is unusual about Russia harassing representatives of nations that has drawn its ire?  Nothing.

What is unusual is that it took the Prime Minister and Speaker of the Moldavian Parliament to deliver this note of protest to the Russian Ambassador to Moldova rather than the usual Foreign Ministry delivery route.

It would appear that the attempts of the Moldavian Foreign Ministry to employ the usual channels were simply ignored and rebuffed by Russia – thus unusual steps were taken.  A reader can be sure that with every attempt to make official complaint via the usual channel will have resulted in yet worsening belligerent behavior by the Russian agency responsible for the harassment for matters to have reached this point.

Nevertheless, regardless of what blunt diplomacy occurred at the meeting between the Moldavian parliamentary political elite and the Russian Ambassador, and notwithstanding any direct and/or barbed text within the official note passed, a reader will not be blind to the fact that the Russian agency/agencies responsible for the abandoning of rule of law and international conventions relating to foreign officials are not named in the public statement.

Indeed it the public statement is carefully worded so as to frame the issue not as the Kremlin sanctioned politically motivated harassment it is, but as an overzealous institutional issue relating to Russian agency/agencies perhaps running amok without the Tsar’s awareness.

Something of a “pulled punch”?  Well yes, but this is a bantamweight tacking a swing at a heavyweight and suffering from a questionably supportive European corner.

Of course it is also likely that the escalating harassment will now escalate yet further.

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The Eurojust Agreement crosses the Ukrainian finish line

March 8, 2017

Following an interesting few days surrounding the Nasirov arrest and eventual incarceration (at least until bail is made), President Poroshenko has put his signature upon the agreement between Ukraine and Eurojust.

The agreement was signed on 27th June 2016 by Prosecutor General Lutsenko and Eurojust President Michele Coninsx.

On 8th February 2017, the Verkhovna Rada, albeit with only 230 votes in favour (from the 346 parliamentarians registered in the session hall) passed a law ratifying the Agreement.  (A minimum 226 votes in favour required for a simply majority vote.)

8th March 2017 witnessed President Poroshenko sign the ratifying law into existence and lo, the Agreement between Ukraine and Eurojust is now binding upon Ukraine.

Ukraine is the 9th third party State that Eurojust has such an Agreement with.

Yet despite this Agreement seemingly being a path as yet untraveled by Ukraine, a reader should note that since 2005 it has been involved in 70 Eurojust cases and 26 Eurojust coordination meetings.

The 12 page Agreement in reality formally codifies what would appear to have been happening in some shape, form or manner (de jure or de facto) 70 times since 2005. – that “cooperation” for the most part being the transfer of operational and personal data, presumably in line with EU Regulations.

There are a few interesting personnel appointment issues that come from this Agreement entering into force, but before raising those, it is perhaps worth noting a rather flexible but fundamental definition therein.

Article 2 – The purpose of this Agreement is to enhance the cooperation between Eurojust and Ukraine in combating serious crime, particularly organised crime and terrorism.

This seems to be rather elastic prose – perhaps rightly.

While the emphasis clearly focuses on organised crime and terrorism, it also covers the broad scope that can be variously stretched to be “serious crime” when expedient.

Equally there are questions to be asked over whose definition of organised crime is relevant?

Likewise a question over the definition of “terrorism” – for there is no globally accepted definition of terrorism.  (The last UN attempt to arrive at a definition of terrorism led by Kofi Annan was in 2006 – and like all previous attempts failed for a number of reasonable arguments presented by Member States.)

Elastic Article 2 wordsmithery aside, Ukraine now has some personnel issues to decide.

Article 5(1) provides that Ukraine nominate a Liaison Prosecutor (plus one Deputy) to Eurojust.

With the emphasis of the Eurojust AGreement aimed at organised crime and terrorism, (and the line is often smudged with one financing the other), from which of the designated specialist tentacles of the PGO is the most appropriate Liaison Prosecutor to be found?  Is the Deputy to be of a different relevant specialism, or simply an adequate replacement when the Liaison Prosecutor is unavailable?

Presumably matters for Yuri Lutsenko.

Article 7 obliges Ukraine to nominate (at least one) Correspondent for Terrorism Matters.  A role for a prosecutor – or a counter-terrorism expert, or an active CT officer?   SBU, SZRU or NSDC?  One from all three – or perhaps all four institutions?

If the Correspondent(s) for Terrorism Matters is/are not appointee(s) from within the PGO then surely their appointment is beyond the remit of Mr Lutsenko – despite the President stating the Prosecutor General is now responsible for implementing the Agreement.

Yet further, who will act as liaison for the minefield that is data protection and its transfer?  Personal as well as institutional accountability will be essential – for it is a very expensive matter to get wrong.

T’will be interesting to see who is appointed as what – and when.

On personnel issues from without heading into Ukraine, t’will also be interesting to see whether Article 6 is ever applied.

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Nasirov (continued) – When theatre goes wrong

March 6, 2017

It has been a few days since the last entry relating to the long overdue arrest of  Roman Nasirov (the currently suspended head of the State Fiscal Service).  There was good reason not to mention the issue further.

As that entry made clear and interesting few days were ahead – “Meanwhile, Mr Nasirov during his arrest displayed the time honored act of suddenly falling ill.  He may be relatively young, but clearly he has learned no new tricks, relying on the usual attempted mockery of the system.”

The purpose of this charade was to run down the NABU clock regarding the legal right to detain Mr Nasirov and feign illness sufficiently well that with an agreeable judge, or as it turned out with the lack of a judge, he wold be able to walk away without any form of restrictions on his liberty.

Now some may question why NABU arrested Mr Nasirov on a Friday, meaning their 72 hours detention clock expired on a Sunday – it may be for operational reasons, or it may be poor planning in retrospect – albeit NABU had every right to expect a judge to be found on a Sunday to either apply remand, bail, house arrest, or no limitation upon Mr Nasirov’s liberty.

(A reader can be sure that judges across Ukraine were being found to authorise detentions for lesser mortals on a Sunday.)

Needless to say certain elements within the judiciary and political class conspired to insure that the NABU detention clock expired on the night of 5th March and that Mr Nasirov could walk free – or at least he could walk free if he would stop feigning illness.  No doubt for the theatre he would have left the court on a stretcher only to have a miraculous recovery after a brief hospital visit.

As is so often the case over the past 3 years, and unfortunately will continue to be the case, it fell to the people of Ukraine, its civil society and its activists to fill the deliberate void created by the judicial-political conspiracy designed to allow Mr Nasirov the opportunity to legally disappear into the night.

As the NABU detention clock ran out, there was no running out of the court for Mr Nasirov.  Crowds had assembled outside to convince Mr Nasirov to remain in the court until Monday when a judge would turn up.  Those crowds remained all night.  Mr Nasirov remained inside the court.  A judge turned up.

All the usual lawyerly tricks, political skulduggery and judicial subjugation there under managed to come to naught due to an increasing irked public rapidly loosing what remains of its little faith in the current national management.

If Mr Nasirov was to be thrown under a bus – which by pure chance (or probably not) saw the IMF reach agreement for the next tranche following Mr Nasirov’s arrest – then it was a bungled job.  If he is to truly face due process, or whether it was simply a con to get the IMF on board and then to let Mr Nasirov off the hook on a legal technicality later, the theatre played out in such a way that neither public nor foreign institutions will have any increased faith in the leadership – indeed (once again) the opposite has happened.

Clearly the Nasirov case will become a significant case – perhaps the corruption case of 2017.  He is the highest ranking official to have been arrested by NABU – and has been privy to many a dodgy deal among the ruling elite over the past 2 years.

Mr Nasirov does not look like the type of man that would “do time” easily, and there must be some concerns in certain circles that he may cut a deal if he isn’t afforded the opportunity to disappear with most of his ill-gotten gains, unless vested interests insure the case successfully sabotaged and thereby (wrongly) closed.

Lest a reader forget, 3 years on from “The Revolution of Dignity”, nobody from the political and institutional elite has gone to jail.  In the absence of a dedicated and independent anti-corruption court (and appeals chamber), perhaps none of them will.

At the time of writing it remains unclear what, if any, restrictions upon Mr Nasirov may yet be applied.  The court remains in session – both within and without the building.

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Nasirov suspended as SFS Chief

March 3, 2017

Long has this blog regularly and repeatedly raised issues, mostly nefarious but also political, surrounding the Head of the State Fiscal Service (SFS), Roman Nasirov.

That is has written nothing supportive or even neutral regarding Mr Nasirov is due to the fact he is a nefarious, scheming and odious individual that should have long since been removed from office – had political circumstance allowed for it.

Perhaps the kindest words written about him have been that he consistently reaches his figures required by the State budget – which are hardly kind words.

In private conversation with Ukrainian politicians and the international diplomatic community there has ne’er been anything more positive said about him than the sentiments expressed in the proceeding paragraph.

A reader may therefore decide to infer that all comments in such private conversation where he has been mentioned have painted a rather dim view of him by way of his shenanigans as the head of the SFS – notwithstanding the politics that have kept him in office despite his shortcomings.  No doubt many a diplomatic communique paints a rather grim picture of Mr Nasirov – and rightly.

On 2nd March, and not before time, NABU (the Ukrainian Anti-Corruption Bureau charged with tackling ingrained naughtiness within the nation’s political and institutional elite) have eventually got around to tackling Mr Nasirov.

He has been formally informed of criminal investigations against him (abuse of power resulting in grave consequences) relating to his alleged involvement in the on-going and prolonged Alexander Onishchenko saga – now in self-exile from Ukraine and wanted for gas related corruption issues.

To be fair, if private yet learned conversation is any guide, this would be but one of several investigations to which Mr Nasirov should be subjected to.  Time will tell if yet more investigations follow.  They should.

Regardless, that he has finally been arrested should lead verily to much rejoicing – albeit arrest is a far cry from conviction within the justice system suffered by Ukraine.

That the Finance Minister, who has increasingly suffered Mr Nasirov, swiftly took the opportunity to rally Cabinet colleagues to suspend Mr Nasirov from his role pending the investigation “for the benefit of both Mr Nasirov and the investigation” is telling.

Meanwhile, Mr Nasirov during his arrest displayed the time honored act of suddenly falling ill.  He may be relatively young, but clearly he has learned no new tricks, relying on the usual attempted mockery of the system.

For those readers who follow Ukraine closely, if Mr Nasirov appears to be far more rotund than he was when he first took on the role of SFS Chief less than 2 years ago, perhaps a determined grazing upon fois gras is to blame – if possibly financed within a lowly civil servants salary – as clearly trips in opaque circumstances to the Trump inauguration do.

Nevertheless, this is Ukraine, a nation where sackings are often not sackings – all too regularly leading to tragicomic Yo-Yo employment.  (Yes the Labour Code needs a serious and immediate overhaul.)

Ergo Mr Nasirov’s suspension is a suspension for how long?  Until the investigation ends, or until a dodgy judge rules the suspension somehow unlawful?

The answer to that on this occasion can perhaps be found in the acting replacement for Mr Nasirov.  Miroslav Prodan, an experienced State tax official who hails from Vinnitsa will now take on the acting role of heading the SFS.

A reader may now be (cynically) asking just who has their political power base in Vinnitsa – and wondering how that will be (rightly or wrongly) perceived.  So too perhaps will Mr Nasirov.

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