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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 14 May 1998,
Having concluded its consideration of communication No. 59/1996, submitted
to the Committee against Torture by Mrs. Encarnación Blanco Abad under
article 22 of the Convention,
Having taken into account all information made available to it by the author
of the communication and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is Encarnación Blanco Abad, [FNa] a
Spanish citizen. She claims to be the victim of violations by Spain of
articles 12, 13 and 15 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. She is represented by counsel.
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[FNa] An earlier communication submitted on behalf of the author and her
husband (communication No. 10/1993) was declared inadmissible by the
Committee on 14 November 1994 for failure to exhaust domestic remedies.
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The Facts as Submitted by the Author
2.1 The author was detained along with her husband, Josu Eguskiza, on 29
January 1992 by officers of the Guardia Civil for alleged involvement in
activities on behalf of the armed gang ETA. She alleges that she was
mistreated between 29 January and 2 February 1992, when she was kept
incommunicado under anti-terrorist legislation.
2.2 Brought before Madrid Court of Criminal Investigation No. 44 for
preliminary investigation No. 205/92 on 13 March 1992, the author described
the mistreatment and torture to which she had been subjected while in the
custody of the Guardia Civil. The preliminary investigation had been
instituted by the court upon receiving, from the Director of Carabanchel
Women's Penitentiary Centre, the report of the doctor who had examined the
author and observed bruises upon her entry into the Centre on 3 February
1992.
2.3 On 2 February 1993 the court ordered a stay of proceedings, not
considering the incident reported to be a penal offence. Following an
appeal, Court No. 44 granted permission on 13 October 1994 to continue with
criminal proceedings. The judge handed down an order dated 4 April 1994 to
shelve proceedings definitively. The Provincial High Court confirmed this
decision by order dated 5 September 1995. An application for remedy of
amparo filed with the Constitutional Court against the Provincial High
Court's order was dismissed on 29 January 1996.
State Party's Observations on the Admissibility of the Communication
3.1 In its submission of 17 January 1997, the State party pointed out that
since 3 February 1992 Mrs. Blanco Abad had been assigned up to seven lawyers
to represent and defend her. Despite this, Mrs. Blanco Abad had not formally
reported any mistreatment. It submitted that the legal proceedings were set
in train by the official transmission to the court of the report of the
medical check-up on the author conducted when she entered the Madrid
Penitentiary Centre on 3 February 1992. That is, the only legal
investigations of alleged mistreatment were instituted not in response to a
report by the individual concerned, nor by her family, nor by any of her
seven lawyers, but rather as the result of an official procedure enshrined
in the regulations to safeguard human rights. Not until 30 May 1994, two
years and three months after the event, did the author send a written
communication to Court of Investigation No. 44 designating three legal
representatives.
3.2 The State party admitted that, with the decision of the Constitutional
Court on 29 January 1996, all domestic remedies had been exhausted.
3.3 In reference to article 13 of the Convention, the State party confirmed
that by letter of 9 September 1994, Mrs. Blanco Abad's counsel had appealed
against the stay of the officially instituted investigations. On 13 October
1994 Court No. 44 annulled the stay of proceedings, allowing them to
continue, and called for an expert report to be prepared. Mrs. Blanco Abad
did not appeal against the examination authorized; neither did she insist on
other investigations. The medical examiner submitted his report on 22
November 1994. On 4 April 1995, Court No. 44 issued an order which gave a
detailed account of the medical tests conducted and concluded with the
decision to shelve the proceedings definitively.
3.4 The State party submitted that from 9 September 1994, when Mrs. Blanco
Abad applied in writing for the stay to be revoked, up to the aforementioned
order to shelve the case definitively, the record shows not a single written
communication from Mrs. Blanco Abad calling for an investigation or
presenting any evidence.
3.5 On 19 April 1995, Mrs. Blanco Abad applied for reconsideration of the
earlier decision to shelve the proceedings. On 19 May 1995 Court No. 44
turned the application down. On 5 September 1995 the Provincial High Court
in Madrid also rejected the appeal. On 6 October 1995 Mrs. Blanco Abad
applied for a remedy of amparo before the Constitutional Court, emphasizing
the subjective evaluation of the medical examinations. The Constitutional
Court considered the judicial decisions in question and pronounced them
well-founded, with reasoning that could "not be challenged as manifestly
unreasonable or arbitrary".
3.6 The State party pointed out that less than 15 months had elapsed between
the reopening of the investigation and the Constitutional Court's decision.
The investigation had been reopened for six months, and during those six
months Mrs. Blanco Abad neither took any action nor submitted anything at
all in writing. The remaining nine months were taken up with the application
for reconsideration, the appeal before the High Court and the amparo
proceedings before the Constitutional Court.
3.7 For the above reasons, it was submitted that Mrs. Blanco Abad's
representations, over two years after the event, in investigations
instituted in response to an official act, had been promptly and impartially
examined. The State party therefore submits that no violation of article 13
of the Convention has occurred.
Comments by the Author
4.1 In her comments on the State party's submission, the author stated that
by decision of the National High Court dated 26 December 1995, she was
sentenced to seven years' ordinary imprisonment and a fine. The judgement
observes:
"The defence initially sought annulment and suspension of the judgement on
the grounds of the torture undergone by the accused during detention and
while being held at the police stations. The Criminal Division, in view of
the abundant and always detailed testimony offered not only by the accused
but also by the witnesses called, acknowledges that this might have
occurred. Hence its decision to take no account of the statements to the
police, which are invalid."
4.2 The author argued that the only evidence against her were the pleas
entered by two co-defendants, her husband, Mr. Josu Eguskiza, and Mr. Juan
Ramón Rojo, which incriminated her, and that, notwithstanding the view of
the National High Court, which found them valid, they were obtained by means
of mistreatment and torture, and stemmed directly from the statements to the
police that had been declared void.
4.3 The author indicated that on 2 February 1992, she made a statement to
the investigating magistrate without being able to consult a lawyer, not
even the duty counsel, and that although the official record mentioned the
lawyer designated by her, he was not able to attend until the accused's
statement had been finalized. The record showed that, responding to the
first question put to her, she "neither said nor confirmed in her statement
to the Guardia Civil", that she belonged to or had collaborated with ETA.
She also related that while on Guardia Civil premises she was mistreated. In
particular, she said she had been struck with a telephone directory, had a
bag put over her head and electrodes on her body, had been forced to undress
and had been threatened with rape. She also claimed to have been forced to
stand for long periods against a wall with her arms raised and legs apart
while being struck from time to time about the head and genitals, and
receiving all manner of insults.
4.4 The author submitted that the medical examinations she underwent while
detained incommunicado were superficial checks, and that not even her vital
signs were measured. There was no assessment of her nervous state, and she
was not asked about the kind of threats and insults to which she had been
subjected; the conclusion was that she bore no signs of violence. The doctor
put in her report that the detainee reported not having slept, having been
beaten, and having been forced to remain naked. Despite this, she concluded
that the author was in a suitable physical and mental condition to make a
statement. Only on 3 February 1992, in prison, the author said, was any
medical evidence of maltreatment found on her person, when three bruises
were discovered. In this connection, the author refers to a June 1994 report
by the European Committee for the Prevention of Torture illustrating the
superficiality of the reports drawn up by doctors attached to the National
High Court.
4.5 The author stated that there was no impartial and independent inquiry
during the conduct of the preliminary investigation, which was instituted as
a result of what she had told the doctor at the penitentiary centre. The
three specialized medical reports ordered by the court were clearly at odds
over the dating of her bruises by their colour (between four hours and six
days), which was crucial to the outcome of the inquiry. She said that no
statements were taken from those who might have been responsible for the
alleged offence.
4.6 The only investigation that was done after the partial retraction of the
stay of proceedings ordered as a result of the remedy filed by the author on
9 September 1994 took the form of a third specialized report by the medical
examiner attached to the Court of Investigation on whether the mistreatment
alleged by the author would have left traces that could be detected by a
doctor on examination, hours or days later. This last medical report, dated
22 November 1994, stated that "the acts of aggression reported should have
left objectively observable injuries in the parts of the body allegedly
concerned, particularly the scalp and the genitals, unless the injuries were
extremely slight. When a person is beaten unconscious, there will very
probably be subsequent injuries, not only to the back and shoulders but to
other areas as well." This opinion, combined with the National High Court
doctor's lack of rigour in estimating the date of her injuries, led the
court to declare the case definitively shelved.
4.7 The author pointed out that the shelving order referred to the
impossibility of furnishing proof of any of the acts of aggression
recounted, which included blows to the head, kicks to the genitals,
hair-pulling and loss of consciousness. She emphasized that the kinds of
violence she related do not leave physical marks on the victim, and that
neither any of the kinds of psychological and sexual torture she alleged,
nor most of the physical torture ("bagging", "hooding" and low-voltage
electric shocks), leaves external signs of injury on the body. She submitted
that, while a victim's testimony was not in itself always enough to secure a
conviction, it was nonetheless true that such testimony, in cases where
objective tests were not possible and there was no reason to doubt its
veracity, had sufficed in many instances to bring in a guilty verdict when
the following stipulations had been met: absence of reasonable doubt,
verisimilitude corroborated by circumstantial evidence, and consistency in
the charges. She stressed that no statements were taken from the officers on
guard, and that the person who had shared the cell with her while she was
being held incommunicado had not even been called as a witness to describe
how she had been held in custody.
4.8 The author concluded that there had been breaches of articles 12 and 13
of the Convention against Torture. She submitted that current
"anti-terrorist" legislation encouraged torture, infringing the basic right
to counsel, hampering the collection of evidence that torture had been
employed and, ultimately, guaranteeing that torture would go unpunished. In
her view, that legislation runs counter to the spirit of article 2 of the
Convention against Torture.
4.9 She also submitted that the action taken against her on account of her
presumed involvement with an armed gang served to show that the only
evidence against her was that obtained under torture and duress from Mr.
Eguskiza and Mr. Rojo, in breach of article 15 of the Convention against
Torture.
The Committee's Decision on Admissibility
5.1 At its eighteenth session the Committee considered the admissibility of
the communication and ascertained that the same matter had not been, and was
not being, examined under another procedure of international investigation
or settlement. It observed that the State party had raised no objection
regarding admissibility and considered that the available domestic remedies
had been exhausted.
5.2 The Committee considered that the communication might raise issues under
articles 12 and 13 of the Convention, notably in relation to the period of
over a month that elapsed between when the court received the medical report
and when it heard the author, and what the court was doing during the almost
11 months that separated the author's statement from the stay of
proceedings.
5.3 As to the author's allegation that her conviction violated article 15 of
the Convention, the Committee noted the comment in the judgement of the
National High Court that the statements made to the police by the accused
(including the author) had not been taken into consideration because of the
possibility that torture had been used. The author's convention was based on
other, uncompromised, voluntary statements made when the accused had been
accompanied by counsel of their own choosing. In the circumstances, the
Committee found that the author's claim of a violation of article 15 lacked
the requisite corroboration, rendering it incompatible with article 22 of
the Convention.
5.4 The Committee therefore decided that the communication was admissible
inasmuch as it raised issues relating to articles 12 and 13 of the
Convention.
Submission of the State Party on the Merits
6.1 In a submission of 10 November 1997 the State party reiterated that,
although the author had been assisted by seven lawyers in the proceedings
against her, not a single complaint or report of maltreatment had been
presented via the domestic means of redress and that Court No. 44 had
initiated the investigation without any application from the individual
concerned, who was not even represented in court as an interested party when
the compulsory offer of recourse was made to her. This attitude on the part
of the author was curious since at the same time she reported the alleged
maltreatment to several international bodies. From 9 September 1994, the
date on which she requested the revocation of the stay of proceedings, until
4 April 1995, when the shelving order was made, the author did not request
any investigation or produce any evidence. Her report of alleged
maltreatment was inconsistent with this passive behaviour - not taking any
action via the domestic means of redress, not being represented as a party
directly involved in the official investigation, and reactivating an
investigation but taking no part in it for six months.
6.2 The State party submitted, with respect to article 13 of the Convention,
that insofar as this article refers to the right to complain, its
application in the present case would be limited to the period beginning
with the author's representations to Court of Investigation No. 44 following
the order for a stay of proceedings, representations which marked the
reopening of the investigation. Less than 15 months elapsed between the
reopening of the investigation and the decision of the Constitutional Court.
The investigation was in progress for six of these months, and during theses
six months the author, assisted by lawyers, did not submit a single document
to the Court and did not produce or propose any evidence. In the remaining
nine months after the shelving order, the applications to the Court of
Investigation, the Provincial High Court and the Constitutional Court were
submitted, heard and ruled upon. Accordingly, the State party did not fail
to fulfil its obligations under article 13 of the Convention.
6.3 With regard to article 12 of the Convention, the State party submitted
that the Spanish system of protection against maltreatment has procedures
for safeguarding that right, including in cases, such as the present one,
when the party concerned takes no action. When the author entered the
Penitentiary Centre on 3 February 1992, she was given a medical examination.
The findings of this examination reached the High Court of Madrid on 13
February for distribution. On 17 February they were delivered to Court of
Investigation No. 44. On 21 February Court No. 44 issued an order to begin a
preliminary investigation and sent an official letter to the Director of the
Penitentiary Centre ordering the author to appear on 7 March. She did not
appear on that date, and on 9 March a new summons was issued for 13 March.
On 13 March the author made a statement and the offer of recourse was made
to her. On that same date the Judge authorized an application to Central
Court of Investigation No. 2 of the National High Court for official copies
of the records of the medical examinations carried out by the forensic
medicine staff of that Court. On 30 April, when these copies had still not
been received, the Judge sent an urgent reminder. The papers were delivered
on 13 May. On 2 June the Judge requested the medical examiner of her Court
to make a report; this report was delivered on 28 July. On 3 August the
Judge summoned the medical examiner who had attended the author during her
detention. On 30 October the Judge set the date of 17 November for receipt
of the statement of the medical examiner and also authorized an application
for information from the Penitentiary Centre about the time at which the
author had been examined and the development of the injuries. On 23 December
the Penitentiary Centre delivered the requested information. On 2 February
the Judge issued the shelving order.
6.4 These facts show that there was no tardiness or delay in the conduct of
the investigation. At no time did the author complain through the domestic
channels about delays in the preliminary investigation, either before or
after the temporary shelving order, once she had become represented in the
proceedings.
Comments by the Author
7.1 In her comments on the State party's submission, the author maintains
that in the five forensic examinations she underwent during the more than
100 hours for which she was held incommunicado she indicated that she had
been subjected to maltreatment. The author encloses copies of the five
medical reports which were prepared. In the first it is stated that "she
does not mention physical ill-treatment, although she was kept hooded for
many hours". According to the second, "she does not mention physical
ill-treatment although does speak of threats and insults". In the third "the
person concerned says that she is very nervous, has not slept and has not
received food. She mentions having received ill-treatment consisting of
blows to the head, but there are no signs of violence". The fourth says that
"she mentions ill-treatment consisting of blows, but there are no signs of
violence". In the fifth "she mentions ill-treatment consisting of blows and
of having been kept undressed. No signs of violence are apparent upon
examination".
7.2 In her statement to Court of Investigation No. 2 of the National High
Court on 2 February 1992, the author spoke of having sustained many blows,
having had a bag put over her head until she nearly suffocated, of the use
of electrodes, threats and insults, and of having been forced to undress.
Notwithstanding, the judge did not automatically arrange for the competent
judicial authorities to investigate the complaints.
7.3 The action of Court of Investigation No. 44 consisted in issuing various
instructions for the medical reports on the examinations carried out during
the period of incommunicado detention, as well details of the examination
conducted in prison, to be entered in the record. In addition, two expert
appraisals were obtained on 28 July and 20 November 1992, respectively. The
first was by the forensic physician of the examining court and the second by
the official forensic expert of Court of Investigation No. 2.
7.4 The author indicated that the forensic reports made available by Court
of Investigation No. 2 did not include the one for 31 January 1992, which is
not to be found in the record and has therefore not been appraised by the
experts. The judicial proceedings also failed to determine the exact time of
the prison medical examination on 3 February, although the certificate sent
by the penitentiary centre to the author's counsel suggests that it took
place in the morning.
7.5 The order definitively shelving the proceedings states that "it is
necessary to establish, on the one hand, the impossibility of furnishing
proof of any of the acts of aggression recounted by the complainant, i.e.
blows to the head, the placing of a plastic bag over the head, kicks to the
genitals, hair-pulling and loss of consciousness, since they were not
confirmed in any medical examination and yet should have left some kind of
palpable injury, according to the forensic medical report, and, on the other
hand, the existence of other injuries as described for the first time in the
medical report of 3 February". It also indicates that it is not possible to
reach any conclusion regarding whether the cause of the injuries described
"was accidental, intentional or self-inflicted, since the three
possibilities are compatible with the objective findings, and the statement
of the complainant, which constitutes the other source of information, is
not supported by the chronology of the injuries established by the existing
medical reports. In view of the impossibility of establishing the cause of
the injuries, no offence can be said to have been committed and the
proceedings must therefore be shelved".
7.6 This decision was challenged in an appeal based, among other things, on
the following arguments:
- With regard to virtually all the acts of aggression described by the
author (blows to the head, kicks to the genitals, hair-pulling and loss of
consciousness), it was argued that these involved the use of methods
intended to leave no physical marks on the victim. Neither the alleged forms
of psychological or sexual torture, nor most of the physical torture
("bagging", "hooding" and low-voltage electric shocks) left external signs
of injury on the body;
- With regard to the dating of the various bruises, the complainant adduced
the theory put forward by the first expert, defining two of them as between
two and six days old, while the other two were said to be more recent. The
fact that the bruises had not been detected earlier could have been due to a
defective physical examination or to the poor light;
- With regard to the value of the victim's testimony considering the lack of
objective evidence, reference was made to the case law of the Supreme Court,
according to which account should be taken of the absence of reasonable
doubt, verisimilitude corroborated by circumstantial evidence, and
consistency in the charges. Furthermore, in the course of the police raid on
29 January 1992 many detainees complained of ill-treatment to the forensic
physician and the examining magistrate. The complainant therefore called for
statements to be taken from the person with whom she had shared a cell while
in detention, as well as from the officers on guard.
7.7 On 5 September 1995 the Provincial High Court dismissed the appeal. On
28 September 1995 the author made an application for amparo to the
Constitutional Court as she considered that the Provincial High Court's
decision violated articles 15 (right to physical and moral integrity) and 24
(right to the protection of the courts) of the Constitution, the latter on
the ground of failure to allow the submission of evidence proposed by the
author, namely, a statement by the prison doctor who noted the injuries and
statements by the members of the Guardia Civil responsible for custody.
7.8 On 29 January 1996 the Constitutional Court rejected the application for
amparo, holding that "the right to bring an action at law does not in turn
imply an absolute right to the institution and full conduct of a criminal
proceeding, but entails only the right to a reasoned judicial decision on
the claims made, which may well be to stay or dismiss the proceedings or,
indeed, to declare the complaint inadmissible".
Examination of the Merits
8.1 The Committee has considered the communication in the light of all the
information made available to it by the parties, in accordance with article
22, paragraph 4, of the Convention.
8.2 The committee observes that, under article 12 of the Convention, the
authorities have the obligation to proceed to an investigation ex officio,
wherever there are reasonable grounds to believe that acts of torture or
ill-treatment have been committed and whatever the origin of the suspicion.
Article 12 also requires that the investigation should be prompt and
impartial. The Committee observes that promptness is essential both to
ensure that the victim cannot continue to be subjected to such acts and also
because in general, unless the methods employed have permanent or serious
effects, the physical traces of torture, and especially of cruel, inhuman or
degrading treatment, soon disappear.
8.3 The Committee observes that when she appeared before the National High
Court on 2 February 1992, after having been held incommunicado since 29
January, the author stated that she had been subjected to physical and
mental ill-treatment, including the threat of rape. The Court had before it
five reports of the forensic physician attached to the National High Court
who had examined her daily, the first four examinations having taken place
on Guardia Civil premises and the last on the premises of the National High
Court prior to the above-mentioned court appearance. These reports note that
the author complained of having been subjected to ill-treatment consisting
of insults, threats and blows, of having been kept hooded for many hours and
of having been forced to remain naked, although she displayed no signs of
violence. The Committee considers that these elements should have sufficed
for the initiation of an investigation, which did not however take place.
8.4 The Committee also observes that when, on 3 February, the physician of
the penitentiary centre noted bruises and contusions on the author's body,
this fact was brought to the attention of the judicial authorities. However,
the competent judge did not take up the matter until 17 February and Court
No. 44 initiated preliminary proceedings only on 21 February.
8.5 The Committee finds that the lack of investigation of the author's
allegations, which were made first to the forensic physician after the first
examination and during the subsequent examinations she underwent, and then
repeated before the judge of the National High Court, and the amount of time
which passed between the reporting of the facts and the initiation of
proceedings by Court No. 44 are incompatible with the obligation to proceed
to a prompt investigation, as provided for in article 12 of the Convention.
8.6 The Committee observes that article 13 of the Convention does not
require either the formal lodging of a complaint of torture under the
procedure laid down in national law or an express statement of intent to
institute and sustain a criminal action arising from the offence, and that
it is enough for the victim simply to bring the facts to the attention of an
authority of the State for the latter to be obliged to consider it as a
tacit but unequivocal expression of the victim's wish that the facts should
be promptly and impartially investigated, as prescribed by this provision of
the Convention.
8.7 The Committee notes, as stated above, that the author's complaint to the
judge of the National High Court was not examined and that, while Court No.
44 examined the complaint, it did not do so with the requisite promptness.
Indeed, more than three weeks passed from the time that the court received
the medical report from the penitentiary centre on 17 February 1992 until
the author was brought to court and made her statement on 13 March. On that
same date the court called for Section 2 of the National High Court to
provide the findings of the medical examinations of the author by the
forensic physician of that court, but more than two months elapsed before on
13 May they were added to the case file. On 2 June the judge requested the
court's own forensic physician to report thereon, and this was done on 28
July. On 3 August the judge summoned the forensic physician of Court No. 2
who had conducted the said examinations. This physician's statement was
taken on 17 November. On that same date the court requested the penitentiary
centre to indicate the time at which the author had been examined in that
institution and how the injuries had developed; this information was
transmitted to the court on 23 December. Contrary to the State party's
contention, as cited in paragraph 6.4, that there had been "no tardiness or
delay in the conduct of the investigation", the Committee considers that the
above chronology shows the investigative measures not to have satisfied the
requirement for promptness in examining complaints, as prescribed by article
13 of the Convention, a defect that cannot be excused by the lack of any
protest from the author for such a long period.
8.8 The Committee also observes that during the preliminary proceedings, up
to the time when they were discontinued on 12 February 1993, the court took
no steps to identify and question any of the Guardia Civil officers who
might have taken part in the acts complained of by the author. The Committee
finds this omission inexcusable, since a criminal investigation must seek
both to determine the nature and circumstances of the alleged acts and to
establish the identity of any person who might have been involved therein,
as required by the State party's own domestic legislation (article 789 of
the Criminal Procedure Act). Furthermore, the Committee observes that, when
the proceedings resumed as of October 1994, the author requested the judge
on at least two occasions to allow the submission of evidence additional to
that of the medical experts, i.e. she requested the hearing of witnesses as
well as the possible perpetrators of the ill-treatment, but these hearings
were not ordered. The Committee nevertheless believes that such evidence was
entirely pertinent since, although forensic medical reports are important as
evidence of acts of torture, they are often insufficient and have to be
compared with and supplemented by other information. The Committee has found
no justification in this case for the refusal of the judicial authorities to
allow other evidence and, in particular, that proposed by the author. The
Committee considers these omissions to be incompatible with the obligation
to proceed to an impartial investigation, as provided for in article 13 of
the Convention.
9. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, is of the view that the facts before it reveal a
violation of articles 12 and 13 of the Convention.
10. Pursuant to rule 111, paragraph 5, of its rules of procedure, the
Committee would wish to receive, within 90 days, information on any relevant
measures taken by the State party in accordance with the Committee's views.
[Done in English, French, Russian and Spanish, the Spanish being the
original version.]
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