消除种族歧视委员会审议哈萨克斯坦的报告（部分翻译）

消除种族歧视委员会 

2014年2月13日

消除种族歧视委员会今日完成审议哈萨克斯坦关于落实《消除一切形式种族歧视国际公约》规定的第六至第七次合并定期报告。

哈萨克斯坦文化和信息部副部长査南•奥马洛夫（Zhanai Omarov）在介绍报告时表示，该报告在准备过程中咨询了民间社会、族裔和文化协会以及国家人权中心，并组织了大量听证会。哈萨克斯坦并不认为需要设立关于种族歧视的特别法，因为国内立法中已有禁止种族歧视的法律规定。哈萨克斯坦宪法和刑法都禁止侵犯公民平等权利的行为，并已落实确保所有族裔团体充分参与政治生活的措施。与哈萨克斯坦各民族大会的磋商仍在继续进行。

在讨论中，委员会专家指出，哈萨克斯坦已经采用了2010年结论性意见中提出的一些建议，并对哈萨克斯坦与委员会进行密切合作予以表扬。专家重点关注煽动问题，建议应像哈萨克法中所述予以惩处，并强调有必要清晰界定“歧视”一词。提问还涉及难民、寻求庇护者以及无国籍人的状况、打击贩运人口现象、罗姆人和非洲裔人的待遇以及如何应用特别措施来进一步促进少数群体的权利。

哈萨克斯坦国别报告员黄永安（Yong’an Huang）在总结发言时表示，与哈萨克斯坦的对话坦诚、有益且具有建设性。代表团提供了关于哈萨克斯坦各个少数群体状况的最新消息。关于特别措施方面，任何一个国家都不应否认，少数群体因为各种各样的原因地位不平等，这正是为何通常应该采取一些额外的行动。结论性意见将可能包含此方面的建议。

奥马洛夫先生表示，代表团很高兴委员会对哈萨克斯坦取得的积极进展予以表扬。哈萨克斯坦将考虑并仔细研究所有的意见和建议，并将证实是否可以采取关于特定族裔团体的保护主义/特别措施。
哈萨克斯坦代表团包括来自文化和信息部、司法部、内务部、教育科学部、外交部、参议院、人权委员会、总检察长办公室、最高法院、哈萨克斯坦共和国日耳曼人社会联盟、公共管理学院、杜斯特里克（Dustlik）人文协会、卡拉干达州立陶尼加（Lituanica） 协会、宗教事务机构、哈萨克斯坦常驻联合国日内瓦办事处代表团的代表。

委员会的下一次公开会议将于今日下午3点召开，届时将开始审议卢森堡的第四至第七次合并定期报告。 
 
报告
 
点此阅读哈萨克斯坦第六和第七次合并定期报告：（CERD/C/KAZ/6-7）。

Presentation of the Report
 
ZHANAI OMAROV, Vice Minister of Culture and Information of Kazakhstan, said that the sixth and seventh combined report presented measures taken since the State party had been considered at the Committee in 2010.  The report had been prepared in consultation with the civil sector, ethnic and cultural associations and the National Human Rights Centre, and numerous hearings had also been organized.  Finalization of the document under consideration was completed in cooperation with representatives of Kazakh non-governmental organizations.

In Kazakhstan, all preconditions were in place for the tolerant co-existence of various ethnicities and religions.  The State party did not believe that there was a need to introduce a special law on racial discrimination, since there were already legal provisions for prohibiting racial discrimination in the country’s legislation.  The Constitution of Kazakhstan and the Criminal Code both prohibited the violation of the equal rights of citizens, or their discrimination on a very wide range of grounds.  Penalties were provided for any such violations. Thus, it was believed that any specialized law against racial discrimination would be superfluous.

The State party considered as unfounded the conclusion that the small number of complaints was caused by a lack of belief in the police or the fear of victims to report such crimes.  Crimes committed on ethnic grounds were considered as having aggravating circumstances.  The review of admissibility of complaints of physical and legal persons were clearly regulated.  The National Human Rights Centre allowed for a possibility for citizens to address it directly.

In 2009, a new law on refugees had entered into force, providing all refugees and asylum applicants equal treatment without discrimination.  The law also provided for the confidentiality of information regarding the private life of refugees.  It prohibited the deportation of asylum seekers.  Asylum seekers had the right to complain when their applications were rejected, and they could stay in the country until their status was decided.  The law prohibited the mistreatment or refoulement of refugees and asylum seekers.

There were some 32,000 migrant workers from 105 countries in Kazakhstan.  In 2011, a law on migration had been adopted, providing for the social protection of migrants and their safety, also by taking measures against illegal migration.  There were new categories of new labour that had been defined: foreign workers, seasonal foreign workers and business immigrants. 

Measures to ensure the full participation of all ethnic groups in political life were in place. Consultations with the Assembly of the Peoples of Kazakhstan were continuously ongoing.  The Assembly was a unique instrument to ensure the protection of human rights, and could send nine representatives to Parliament.  The Assembly members were elected directly by different ethnic groups.  In addition, there were some 820 ethno-cultural organizations across the country.  Ethnic groups had a high civil and public status, and were active in public life as equal, full-fledged citizens of Kazakhstan. 
The delegation informed that there were 32 ethnic media outlets in 13 languages in Kazakhstan, in addition to access to a wide range of foreign media in English, Russian and other languages. 

The Government guaranteed the right of education in one’s mother tongue, and there were currently 74 schools with classes in Uzbek, Uyghur and Tajik.  In addition, 108 schools offered language classes for 16 particular minority groups, including in German, Polish, Kurdish and Turkish, as well as additional classes in both Kazakh and other languages.  Such bilingual teaching had been proven to be an effective approach. 
All opportunities were used to satisfy the linguistic needs of its citizens, and most minority groups were interested in learning the official language, Kazakh, as they perceived it as a way to secure full integration in the Kazakh society and provide a prosperous future for the youth.  Conditions were in place for free studying of the official language. 

Questions by Experts
 
YONG’AN HUANG, Committee Expert and Country Rapporteur for Kazakhstan, stated that China and Kazakhstan had close relations economically, politically and culturally throughout history.  He expressed hope that a new Silk Road economic corridor could be revived with the opening of new railway connections in the region.
 
The State party had applied a number of recommendations from the concluding observations issued in 2010, he said, and commended Kazakhstan for its close cooperation with the Committee.  In addition to the adoption of the refugee act, Kazakhstan had adopted another act on refugees and migrants, and amended the Criminal Code in 2011.  It was positive that international treaties ratified by the State party had an equal standing with domestic legislation.  The fact that a number of Kazakh law enforcement officers had attended training sessions on human rights should also be welcomed.
 
Mr. Huang noted that there were some provisions in the Constitution and other laws covering the concept of non-discrimination, but none of them contained a definition of non-discrimination.  The State party used the term “violation of citizens’ equal rights”, which seemed to be similar to the term “discrimination” as specified in the Convention.  He stressed that the two terms might be similar, but were not exactly the same.  Mr. Huang encouraged the State party to adopt a clear and unequivocal definition of discrimination, in line with the Convention.
 
The Committee had earlier encouraged the State party to establish a national human rights institution.  While the Human Rights Commission, under the Office of the President, was operational, the State party should establish an independent institution, in line with the Paris Principles.
 
The unequal de facto situation between various ethnic groups existed in spite of the Government’s best intentions to secure absolute equal rights for all.  It was vital that the State party take positive steps to increase the representation of ethnic minorities in State legislature, making sure that they could participate more actively in political life and have full access to public services. 
 
It was necessary for the Kazakh Government to regulate legal procedures to deal with the issue of migration, including working permits.  How could the non-discrimination of foreign workers be ensured?  Restrictions imposed on foreign workers in the Kazakh labour market contradicted certain provisions of the country’s Labour Code.  Foreign traders had to pay certain amounts of money to Kazakh citizens in order to register their businesses under local citizens’ names, or, alternatively, bribe local civil servants.  The State party should thus review its approach in that regard.
 
Concerning the situation of the Roma people in Kazakhstan, Mr. Huang expressed hope that the overall conditions would be improved gradually, but steadily.
 
Could more details be provided on the implementation of the national human rights plan? 
 
Kazakhstan was a State party to the United Nations Refugee Convention, and there was hope that the State party would treat refugees and asylum seekers in line with the provisions of international treaties. 
 
Another Expert raised the issue of the Aral Sea, and asked if some ethnic groups living in the area were more underprivileged than others due to the drying out of the lake.
 
Did the delegation have any figures regarding Roma?  How was their access to certain social services, and what was their overall level of education?  Did the Roma indeed not believe the police and view the police as their enemy, which would be a worrying state of affairs?
 
Could more information be provided regarding the ethnic composition of the Kazakh Parliament and local councils? 
 
An Expert wondered whether the definition of discrimination from the Convention was ever invoked by judges.  Had there been such cases?  If so, it could be argued that indeed the definition was well grounded in the country’s legislation.  There ought to be a definition for the whole country, not just the definition of the violation of equality in the Criminal Code.
 
What was the cause for the limited number of reported cases of racial discrimination? The number of complaints was seen as a sign of health of a dynamic and responsive society. 
 
 
Were any organizations or groups promoting racial hatred and discrimination prohibited, the same way some groups denying war crimes were? 
 
Was there any university-level teaching provided in Uzbek or Tajik, so that high school students from those minority groups could easily continue with tertiary education? There should be a greater proportion of university students from ethnic minorities. 
 
An Expert noted that, in terms of territory, Kazakhstan was the ninth largest country in the world, which would lead them to believe that there were not many land ownership problems.  Nonetheless, there seemed to be some problems with arable lands.  How was land distributed between the different ethnic groups, and what were their ownership rates and land utilization rights?
 
Neither the report nor the presentation had mentioned the current situation in combatting trafficking in human beings in Kazakhstan.  Could the delegation provide more information on the subject matter?
 
Did the proportion of prisoners from various ethnic groups correspond to their proportion in the general population?
 
Could the delegation provide more clarification on what it regarded as “natural” and “artificial” inequality?
 
An Expert referred to an “ethnic division of labour” mentioned in the State party’s report.  Were ethnic minorities overall in better or worse paying jobs than ethnic Kazakhs?
 
Deliberate acts to sow social or ethnic enmity and discord were prohibited under Kazakh legislation.  Could minority groups standing up for their rights be accused of sowing ethnic discord?  The delegation was asked to provide more information about reported cases on such grounds.
 
Regarding asylum seekers, there had been reports of the refoulement of some Uzbek and Tajik citizens, who had subsequently been tortured.
 
Another Expert expressed his view that the focus of the Committee should be on individual human rights, rather than the rights of groups, which he described as cultural rights.  The Expert also noted that too much attention of the Committee might have been dedicated to Roma-related issues.
 
Referring to the reported case of incitement against the Russians, an Expert asked whether any action had been taken against the TV broadcaster in question.
 
Could the delegation provide more information on the way judges were appointed, the Expert asked.
 
Given that there was an increasing number of mixed marriages in Kazakhstan, was the right of residence automatically granted to a foreigner marrying a Kazakh citizen?  Was the Kazakh nationality of one of the parents automatically passed on to children, and was there a difference if the man or the woman was a Kazakh citizen?
 
The issue of access to justice for discrimination victims was raised by another Expert.  It was in that regard that special measures were promoted by the Committee.  The Expert encouraged the State party to consider applying special measures. 
 
How could the State party ensure that non-governmental organizations would be included in the follow-up procedures and in the preparation of the following report, the Expert inquired.
 
Was the State party considering the ratification of the International Labour Organization’s Convention on Migrant Workers?  The Expert said that additional information with regard to statelessness would be welcome.
 
Could more details be provided on the phenomenon of trafficking in human beings, and the State party’s efforts to combat that scourge?
 
Another Expert asked how the State party was ensuring equal regional development and that no ethnic groups in faraway regions were disadvantaged.
 
The issue of statelessness was raised by another Expert, who asked whether the State party had any intention to ratify the United Nations 1961 Convention on Statelessness. 
 
Was the State party planning to ratify the amendment to article 6 of the Convention?  The Expert explained that its ratification would not have any additional financial implications for the State party. 
 
How did foreigners living in Kazakhstan register with the State administration, an Expert inquired.
 
Response from the Delegation
 
Mr. Omarov thanked the Committee for the detailed questions and pledged that the delegation would do its best to provide in-depth responses.  He explained that the delegation was very varied from the ethnic point of view, which reflected the ethnic diversity of Kazakhstan’s civil service. 
 
On the activities of the Human Rights Commission, the delegation stated that the President of the Republic had a number of commissions under his purview which helped him fulfill his constitutional duties.  The President had established an operating, effective forum of dialogue; the Commission had 25 members, including members of the Parliament and representative of various social groups.  The Commission was operating under the Paris Principles.
 
In 2002, the Ombudsman’s office had been established in line with the Paris Principles, with the goal of looking into citizens’ complaints.  The Ombudsman could not look into the actions of the President, General Prosecutor and Members of the Parliament.  The Ombudsman had the right to visit any State body, including closed facilities.  The Ombudsman and the Human Rights Commission complemented each other on the entire territory of Kazakhstan. 
 
With regard to the question on a new human rights plan of action, its drafting was currently being considered with representatives of the European Union and the United Nations Development Programme in Kazakhstan. 
 
Concerning stateless persons, the delegation informed that there were some 8,000 stateless persons living in Kazakhstan at the moment, which was the consequence of the breakup of the Soviet Union.  All of those persons had personal identity documents.  Currently, the Government’s intra-agency working group was looking into the issue of the ratification of relevant conventions.
 
There were 497 registered refugees in Kazakhstan at the moment, the large majority of whom were from Afghanistan.  Kazakhstan did not force refugees to leave the country.  If they were abroad, they could apply for refugee status in Kazakh embassies, and if in the country, they should apply for the status within five days of their arrival. 
 
Regarding migration issues, the delegation said that there were quotas for foreign workers in order to protect the domestic labour market; in 2013, the quota had been over 100,000, a fraction of which had been eventually used by employers.  Procedures for hiring foreign workers had now been simplified, decreasing the number of documents which had to be submitted. 
 
There were 18 crimes which could be punished by the death penalty, but as of 2015 the number of such crimes would be decreased.  A moratorium on the death penalty was currently in place, and no death sentences had been pronounced since 2006.  Capital punishment would remain in the Criminal Code, but would be reserved for the most heinous crimes.
 
On the selection of judges,  the delegation said that judges were appointed on a permanent basis, in a highly transparent process.  Qualified legal practitioners were eligible to apply to vacant posts, which were publicly announced.  The Higher Judicial Council shortlisted and selected candidates, after which the list was sent to the Senate for approval. 
 
Any court considering specific cases could refer to the Convention, thus there was no collision between Kazakh legislation and the international treaties. 
 
The delegation explained that there was a special law on parliamentary elections, which ensured that 10 representatives of the Assembly of the Peoples could be elected to the Parliament.  A certain number of members of the Senate also came from ethnic minorities.
 
All citizens of Kazakhstan were granted equal access to being employed in the civil service, as long as they were qualified.  Merit was the only factor taken into consideration when hiring the public administration.  Fifty-nine different ethnic groups were represented in the State administration. 
 
On the question of extradition, 20 persons, Uzbeks and Tajiks, had been arrested in 2010 for  committing crimes related to terrorist activities or assassinations.  Those persons had requested asylum, but their request had been refused, given the absence of any ground to do so.  The General Prosecutor’s Office had received assurances on their treatment after their repatriation, after which they had been sent back to their respective countries.  No international obligations of Kazakhstan had been breached on that occasion.
 
On the question of artificial inequality, the delegation said that the Government of Kazakhstan did not support artificial inequality, meaning that no particular group in society would be given preferential status.
 
Answering the question on combatting terrorism and extremism, the delegation said that given the increasing threat of international terrorism, the State party was cooperating with other countries on this issue.  Pertinent legislation had been introduced, such as on fighting wahabism and salafism.  Kazakhstan was a State party to a number of international conventions.  Ideas of tolerance were spread in schools and universities.
 
There were currently over 5,000 Roma living in Kazakhstan, living in densely populated areas and large cities.  They had large families and had the tendency to purchase or construct their own homes.  Three different communities were represented in the Assembly of the Peoples of Kazakhstan.  The Roma frequently worked as menial labourers, but they were also some entrepreneurs.  More than 700 children attended schools at the moment.  Religion-wise, they were Muslim and Orthodox Christian, who could freely practice their religion.  There was no discrimination when it came to housing.
 
There had never been a single case of refusal to register a media outlet on the grounds of ethnic origin of the group asking to register it. 
 
Regarding cases of racial hatred, Kazakhstan, as many other States, did not have a definition of crime on the basis of race, but any crime caused by racial or ethnic hatred was considered as having aggravated circumstances. 
 
Answering on the situation of the population living by the Aral Sea, the delegation said it was not only an environmental, but rather a socio-economic problem.  Kazakhstan had inherited that problem from the Soviet Union, when irrigation operations had diverged the main tributaries to the Aral Sea.  The majority of the population by the Sea were ethnic Kazakhs and they were most affected.  Efforts were currently underway to restore the Sea. 
 
On why there had been relatively few complaints against racial discrimination, the delegation explained that there were many channels for people wishing to file a complaint.  Sometimes, issues were resolved directly with the help of lawmakers, without going through the courts.
 
Concerning education in minority languages, Kazakhstan was preparing textbooks in cooperation with other countries, where the minorities were originally from.  There were 74 schools in Uzbek, Uyghur and Tajik.  Twenty per cent of high school graduates from those schools passed competitive exams to continue their education and enroll into universities; many among them had received highest grades and honours.  A plan of action for promoting multilingual teaching in Kazakhstan was in place. 
 
With regard to trafficking in human beings, the International Organization for Migration was a long-standing partner of the Kazakh Government.  The State party was doing its best to curtail that phenomenon, including by ratifying and implementing international conventions on transnational crime and combating trafficking and enforced disappearances.  An intra-agency commission was in place to combat illegal transport and trade in human beings.  Human trafficking in Kazakhstan was not a systemic phenomenon, but every year, some 30 to 40 cases were prosecuted.
 
All citizens of Kazakhstan, regardless of their ethnic background, were allowed to buy and sell land and property.
 
On the definition of the term “incitement” in Kazakhstan, it was explained that there were relevant provisions in the country’s legislation to prohibit and punish any such acts.  Thus far, there had been no cases brought to courts on the general ground of incitement; some specific inciting acts had been prosecuted nonetheless. 
 
The Assembly of the Peoples of Kazakhstan was not a rubber-stamp body, but a pertinent and legitimate organ, the delegation emphasized.
 
There were only nine citizens of Uzbekistan who were registered as refugees.
 
There were no frequent mixed marriages in the country – only about four per cent of all marriages were marriages with foreign nationals.  Foreigners could get married to Kazakh citizens after spending three years in the country.  Children with one Kazakh parent would be given Kazakh nationality if the parents agreed to do so.  If parents were not known, or were born to stateless parents, children would be automatically granted Kazakh citizenship. 
 
Regarding the participation of non-governmental organizations in the preparation of the report, the delegation stated that a wide range of such organizations had indeed contributed to the drafting of the report.  The OSCE Centre in Astana had organized a round table at which civil sector representatives could express their opinions.  That was why the delegation could say with conviction that any party who had wished to take part in the process could have done so.
 
The State party was considering the ratification of the amendment of article  6 of the Convention, which was an ongoing and time-consuming process.
 
Follow-up Questions by Experts
 
An Expert referred to an earlier question on the prison population and the percentage of ethnic minorities in prisons, which could be taken as an indication of structural racial discrimination.
 
Another Expert commented that the delegation still seemed to have doubts about the application of special measures.   Special measures should be seen as temporary measures undertaken to fight inequality, which would stop once the inequality was deemed to have ceased.  The Convention provided for special measures, and most countries in the world needed them for one issue or the other.
 
Response by the Delegation
 
There were two chambers of the Kazakh Parliament.  The Assembly of the Peoples consultative body sent nine members to the Parliament.  Information was available on the representation of ethnic minorities at local, regional and central national government levels.  All those levels were taken together in order to have comprehensive information on the presence of ethnic groups in public and political life.
 
The delegation said that the remarks on special measures would be passed on to the Government and be given due attention.
 
There was no distinction between incitement and acts of incitement in Kazakh legislation.  A new law was currently being drafted, and the Expert’s comments on that matter would be taken into consideration.  The inciter was the person who was inviting or using threats to compel somebody else to commit a crime based on racial hatred.  If a person himself committed such a crime, he would be prosecuted directly as a perpetrator.
 
Follow-up Questions by Experts
 
An Expert said that while the act of incitement could be published together with the act of violence, incitement per se ought to be sanctioned and punished.  If politicians or public personalities were making appeals to racial discrimination or hatred, the society would be in danger; one did not need to wait for an act of violence to actually take place.
 
Supporting mixed marriages would be a great way to promote integration, an Expert noted.  The Expert asked whether a child born to Uzbek and German parents in Kazakhstan could be considered Kazakh and given a Kazakh citizenship. 
 
Was the State party following the situation of persons of African descent in Kazakhstan, such as foreign students?  While that might not be a pressing issue for Kazakhstan, the Committee had a general recommendation regarding persons of African descent, who were often in a vulnerable position.
 
An Expert commended promoting bilingualism at the university level as a positive development. 
 
Response by the Delegation
 
The delegation said that persons who committed incitement would be prosecuted; such acts existed in the Kazakh legislation as attempts.
 
On positive discrimination, the delegation explained that a quota system at universities was promoted in order to promote the enrolment of students from minority groups. 
 
Concerning mixed marriages, children born in such unions could have the mother’s or father’s citizenship and had the right to indicate, or refrain from indicating, their ethnic group in their identity documents. 
 
Regarding the situation of people of African descent, it was explained that they were considered as foreigners from distant countries, and were issued study visas if students.  If a person of African descent had a visa, he could apply for a residence permit, and after five years in the country, could be granted citizenship.  Once a person of African descent was granted citizenship, there would be no more monitoring.  There was currently no statistics on such persons in the country.
 
Answering the question on the Roma, the delegation stated that they had same rights as others, including forming cultural associations.  That group was historically integrated in the Kazakh society and was largely Russian speaking, with children often attending schools in the Russian language.  Further efforts would be undertaken to ensure the optimal condition of the Roma population in Kazakhstan.
 
Follow-up Questions by Experts
 
An Expert focused on the need for an introduction of special measures.  He stressed that incitement as such should be punishable.  That point was supported by another Expert, who suggested that incitement ought to be covered by the Criminal Code.
 
Another Expert suggested that the State party ought to stick closely to the text of the Convention when amending the existing legislation on discrimination. 
 
Were there any ethnic groups which were, in general, not interested in civil service, and were consequently underrepresented?
 
An Expert noted that the United Nations General Assembly had proclaimed a Year of People of African Descent, which would commence in January 2015.
 
The Expert proposed that the approach regarding the burden of proof in cases of trafficking in human beings be changed, which should make the prosecution of perpetrators easier.   Confiscation of the financial assets of perpetrators was also increasingly used around the world as a measure to combat that problem. 
 
Response by the Delegation
 
The delegation stated that persons who were victims of trafficking did not bear the burden of proof; it was the prosecutor’s office which had to investigate and prove the case.  Fighting trafficking in human beings was difficult worldwide because of its clandestine nature, but both the Kazakh Government and non-governmental organizations were very active on that front.  Some victims were possibly more at ease addressing those issues with the civil sector.
 
Special measures might already be in place in support of small ethnic groups, the delegation said, but perhaps the terminology used in the State party was different from that used by the Committee.  Special measures were also in place regarding the organization of Sunday schools for children of minority groups.
 
On incitement, the delegation explained that there were specific examples of criminal liability for persons who had incited ethnic or racial hatred. 
 
Regarding employment in the civil service, a number of requirements had to be fulfilled, and competitive examinations were held.  No privileges were granted to any ethnic group, and all were treated equally.  For every position, there were four applicants on the average.
 
 
Concluding Remarks
 
YONG’AN HUANG, Country Rapporteur for Kazakhstan, said that the dialogue with the State party had been frank, useful and constructive.  The delegation had provided the latest information on the situation of ethnic minority groups in Kazakhstan.  Regarding special measures, no State party should deny the unequal status of minority groups for a varied number of reasons, which was why additional actions should normally be taken.  Concluding observations would likely include recommendations in that regard.
 
ZHANAI OMAROV, Vice Minister of Culture and Information of Kazakhstan, thanked the Committee for the close attention paid to the actions of the Government of Kazakhstan on the implementation of the provisions of the Convention.  The delegation was pleased to see that positive developments made by the State party had been commended by the Committee.   All the comments, remarks and recommendations would be taken into consideration and studied carefully.  It would be verified whether protectionist/special measures could be taken in regard to certain ethnic groups.
Mr. Omarov presented the Chairperson with traditional Kazakh tokens of appreciation.
 
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