1. 1Tuesday, 19th October, 1999

    2 [Open session]

    3 --- Upon commencing at 2.46 p.m.

    4 JUDGE JORDA: [Interpretation] Please be

    5 seated. Mr. Registrar, would you call the case,

    6 please, which should be included in the transcript.

    7 THE REGISTRAR: Case number IT-95-10-T, the

    8 Prosecutor versus Goran Jelisic.

    9 JUDGE JORDA: [Interpretation] Thank you. I

    10 also ask that the accused, Goran Jelisic, be brought

    11 into the courtroom.

    12 [The accused entered court]

    13 JUDGE JORDA: [Interpretation] Yes, Mr. Nice.

    14 The Trial Chamber is going to render its decision. Let

    15 me remind you of that. The Trial Chamber is going to

    16 render its division, then you will be given the floor.

    17 First the Trial Chamber will render its decision, then

    18 you will be given the floor. The Trial Chamber is

    19 rendering its decision. You may be seated.

    20 This Trial Chamber is going to render a

    21 decision in the case the Prosecutor versus Jelisic.

    22 Let me remind you that the Prosecution, with Mr. Nice

    23 -- and I would like to say this, since you were

    24 standing before: Could you please tell us, Mr. Nice,

    25 who your colleagues are? And then I'll ask the same



  2. 1things of the Defence.

    2 MR. NICE: Today I'm accompanied by

    3 Mr. Tochilovsky, who has assisted me throughout the

    4 trial; and also Mr. Bergsmo, who has been of assistance

    5 in the recent applications that have been made to the

    6 Chamber.

    7 JUDGE JORDA: [Interpretation] Thank you,

    8 Mr. Nice. Turning to the Defence, would you introduce

    9 yourselves, please.

    10 MR. LONDROVIC: Your Honours, the Defence is

    11 represented by my learned colleague, Mr. Michael

    12 Greaves, from London, and my name is Veselin

    13 Londrovic. I'm an attorney from Bijeljina. Thank

    14 you.

    15 JUDGE JORDA: [Interpretation] Very well.

    16 Thank you.

    17 The Trial Chamber here, under my presidency,

    18 Claude Jorda, and working with Judge Fuad Riad and

    19 Judge Almiro Rodrigues, is going to render its decision

    20 in the case between Goran Jelisic and the Prosecutor,

    21 who was indicted for genocide and for crime against

    22 humanity and war crimes.

    23 Let me suggest that we first summarise

    24 briefly the case and then move to a presentation of the

    25 elements and arguments presented by the Prosecution. I



  3. 1would then suggest that I refer to the most important

    2 parts of the Judges' deliberations and, lastly, to read

    3 out the Trial Chamber's decision.

    4 A quick summary of the proceedings, and I

    5 will try to read slowly, because I know that the

    6 interpreters do not have the versions in all the

    7 languages.

    8 A brief background of the procedure. Can

    9 everybody hear me? Does the interpreters hear me? Can

    10 everybody hear me? Yes. Thank you.

    11 Goran Jelisic was initially accused of

    12 genocide, grave breaches of the Geneva Conventions,

    13 violations of the laws and customs of war, and crimes

    14 against humanity, in an indictment which was filed on

    15 the 30th of June, 1995.

    16 Goran Jelisic was arrested on the 22nd of

    17 January, 1998, and transferred immediately to The

    18 Hague. At his initial appearance on the 26th of

    19 January, 1998, he pleaded not guilty.

    20 The indictment was amended first time at the

    21 request of the Prosecutor so that all the charges based

    22 on Article 2 of the Statute for grave breaches of the

    23 Geneva Conventions were to be withdrawn, and a first

    24 amended indictment was filed on the 13th of May, 1998.

    25 Further to discussions between the parties



  4. 1and the Status Conference organised under the authority

    2 of the Trial Chamber by Judge Riad, an agreement on the

    3 facts relating to the pleas of guilt envisaged by Goran

    4 Jelisic was signed on 9th of the September, 1998 by the

    5 accused and by the Prosecution counsel at that time,

    6 Mr. Bowers and Mr. Tochilovsky, and Defence counsel,

    7 Mr. Londrovic, and at that time Mr. Kostic. On the

    8 basis of that agreement, a new indictment was prepared,

    9 which was filed on the 20th of October, 1998.

    10 On 29 October 1998, Goran Jelisic confirmed

    11 that he was pleading not guilty to the count of

    12 genocide. I repeat: Not guilty to the count of

    13 genocide, but did plead guilty to war crimes and crimes

    14 against humanity, as described in the agreement signed

    15 on the 9th of September.

    16 The parties agreed to consider that a trial

    17 on the crime of genocide should take place and that the

    18 hearing for the sentencing -- that is, for

    19 everything -- that is, after the genocide trial but at

    20 the time that the sentences for crimes against humanity

    21 and war crimes should then be pleaded, and it was under

    22 those conditions that the trial began.

    23 Let me now present the evidence that the

    24 Prosecutor put forth.

    25 On the 30th of November, 1998, the Prosecutor



  5. 1made his opening statement. He asserted that Goran

    2 Jelisic had been, and I quote, "Sent to Brcko to

    3 contribute to the campaign of ethnic cleansing," and

    4 that "For about two weeks he had acted as the principal

    5 executioner at the Luka camp. He had power over life

    6 and death" -- these are the Prosecutor's

    7 words -- "He systematically and repeatedly would kill

    8 Muslim detainees as well as certain Croats."

    9 This comes from the provisional French

    10 transcript of 30 November 1998, page 22.

    11 The Prosecutor stated that the accused had

    12 committed these murders, and again I quote, "With the

    13 intention of destroying, in whole or in part, a racial,

    14 ethnic, or religious group, and that the group targeted

    15 by Goran Jelisic was important because it included all

    16 the dignitaries of the Muslim community in Bosnia, in

    17 that region, but also by its size."

    18 "The accused" -- again, a quotation --

    19 "demonstrated considerable authority and had received

    20 the instructions to kill the largest number of Muslims

    21 possible."

    22 For the Prosecutor, the genocidal intention

    23 could be demonstrated by the words of the accused

    24 himself, as reported by the witness -- as would be

    25 reported by the witness to the Judges, and it would



  6. 1appear again, quote, "That Goran Jelisic was an

    2 effective, enthusiastic participant in the genocide

    3 campaign. The Prosecutor concluded that for the Brcko

    4 victims, the face of genocide was the face of Goran

    5 Jelisic."

    6 The first Prosecution witness was heard on

    7 the 30th of November, 1998. The trial then had to be

    8 interrupted for several reasons and, in the end, was

    9 only able to resume on the 30th of August, 1999. Let

    10 me make clear that there were reasons that were outside

    11 the powers of the Trial Chamber. In all, the

    12 Prosecutor brought in 23 witnesses and presented 70

    13 exhibits.

    14 On the 22nd of September, 1999, the

    15 Prosecutor announced to the Trial Chamber that subject

    16 to a point that it wished to bring up with the Trial

    17 Chamber, and now I quote the Prosecutor, "Yes," he

    18 said, he had reached the end of the presentation of his

    19 case, and that is the end of the quotation. Let me

    20 remind you that the point in question only dealt with

    21 the issue of knowing whether a Prosecution witness

    22 could come to confirm the statements of another

    23 Prosecution witness who had asserted that the accused

    24 had played Russian roulette with him. Other than the

    25 fact that the witness did not come forward, obviously



  7. 1this would not call into question the circumstance and

    2 the fact that the Prosecutor had completed the

    3 presentation of his case.

    4 At the end of the Prosecutor's statement, the

    5 Trial Chamber Judges then held a Status Conference in

    6 order to organise the Trial Chamber's work. Among

    7 other things, the Judges asked the Defence counsel

    8 whether they were planning to file a motion for

    9 rejection of the indictment. I'm saying this for the

    10 public. This is part of our Rules of Procedure and

    11 Evidence. At the end of the presentation of the

    12 evidence, a request for withdrawal of the indictment

    13 can be made. We also asked whether the accused would

    14 appear in his own defence, which is a possibility as

    15 well, a possibility which the Defence can use.

    16 After discussions, the Judges, that is,

    17 during the Status Conference, set the date of 8

    18 November 1999 for the beginning of the presentation of

    19 the Defence case.

    20 The third part: Deliberations.

    21 The Judges then reviewed all of the evidence

    22 put forth by the Prosecution. From their

    23 deliberations, they concluded that even without having

    24 to hear the possible arguments put forth by the

    25 Defence, the accused could not be recognised as guilty



  8. 1of the crime of genocide. Under those conditions, the

    2 Trial Chamber asked the Registry to inform the parties

    3 that this hearing would be held in accordance with

    4 Rule 98 ter of the Rules of Procedure and Evidence in

    5 order to inform the relevant individuals that it would

    6 render its decision today in the Jelisic case.

    7 Rule 98 ter refers to decisions which can

    8 be -- judgements can be made on the basis of 98 bis,

    9 which in our Rules of Procedure and Evidence is called

    10 motion for a judgement of acquittal.

    11 Under those conditions, the Prosecutor, on

    12 the 15th of October, a few days ago, that is, filed a

    13 motion requesting that the Trial Chamber postpone its

    14 decision until the Prosecutor had had the possibility

    15 to present her arguments, particularly the legal

    16 arguments as to the status of the case. The Defence

    17 responded to that motion of the Prosecutor's today, and

    18 the Defence concluded that this motion should be

    19 rejected.

    20 The Trial Chamber considers that there is a

    21 connection, an indisociable [phoen] connection, between

    22 that request and the decision on the substance which

    23 the Trial Chamber said that it would announce its

    24 decision about today. I said to one of the parties

    25 already that the Trial Chamber had to render its



  9. 1decision. Therefore, there is a reason to join that

    2 motion, and we'll call that decision on the motion, to

    3 the decision on the merits.

    4 For more clarity, however, it is at that

    5 level the Trial Chamber will explain the reasons for

    6 deciding that the Prosecutor's motion must be

    7 rejected.

    8 In support of her motion, the Prosecutor put

    9 forth a set of arguments, certain of which at least

    10 partially overlap. The Prosecutor bases herself inter

    11 alia in respect of the principle audi alterem partem;

    12 that is, on the existence of a right to be heard, and

    13 on the erroneous interpretation of Rules 86(A) and

    14 98 bis of the Rules. That is, 86(A) deals with closing

    15 arguments, and 98 bis is a request for a judgement of

    16 acquittal. Both of these articles then it put forth

    17 should be followed before the decision would be heard,

    18 and the Trial Chamber considers that this motion is

    19 inadmissible and therefore must be rejected.

    20 In the first place, it should be remembered

    21 what the letter and spirit of Rules 86 and 98 bis of

    22 the Rules are.

    23 Rule 86 provides that the Prosecutor can

    24 present a closing argument, but this is a possibility,

    25 as the text clearly states, and not an obligation. The



  10. 1proof for that is the circumstance that even if no

    2 final arguments are presented, the Defence may still

    3 present its argument. A Trial Chamber, therefore, is

    4 not bound to allow the Prosecutor to present closing

    5 arguments within the scope of the application of

    6 Rule 98 bis of the Rules, that is, the procedure for

    7 request for acquittal.

    8 Furthermore, the principle of audi alterem

    9 partem, according to which one must always hear the

    10 other party, could not apply to a Trial Chamber which

    11 proprio motu is acting within the framework of

    12 Rule 98 bis of the Rules. That principle which is

    13 raised by the Prosecutor does state that, save

    14 exceptions as, for example, a possibility that one

    15 party would ask to be heard ex parte; that save

    16 exceptions, the opposing party can always present a

    17 response to a motion. But in the case in point, the

    18 decision does not originate from the Defence. It was

    19 not the Defence that asked for acquittal, but it is the

    20 Trial Chamber itself, with its powers that it gets from

    21 the text; that if, after the presentation by the

    22 Prosecution of its evidence, the Trial Chamber

    23 concludes that the evidence presented is insufficient

    24 to justify a conviction for one or several of the

    25 crimes mentioned in the indictment, it will pronounce,



  11. 1at the request of the accused or proprio motu,

    2 acquittal.

    3 Especially, the Prosecutor is that much less

    4 entitled to present a motion by the fact that it was

    5 the Prosecutor, on the 22nd of September, stated that

    6 it completed its evidence. This is page 1681 of the

    7 French provisional transcript. In accordance with

    8 Rule 85 of the Rules, it would be logical that the

    9 moment had come for the Defence to present its own

    10 case.

    11 The Judges weighed all of the evidence which

    12 was presented by the Prosecutor, and since, at the end

    13 of the deliberations, the Judges decided, and

    14 sovereignly decided, that the evidence presented by the

    15 Prosecution was insufficient to, and I quote, "to

    16 justify a conviction," they must acquit.

    17 The text of Rule 98 bis is perfectly clear.

    18 It does not give the possibility to the Judges, under

    19 such circumstances, to acquit an accused; it obliges

    20 them to do so. The English text is just as clear, I

    21 can say for my English-speaking friends. The English

    22 text, as I said, is just as clear. "The Trial Chamber

    23 shall order the entry of a judgement of acquittal." I

    24 hope that I have not completely twisted the English

    25 language.



  12. 1This absolute character precludes all

    2 possibilities of intervention on the part of the

    3 accused party, except, of course, for the appeal, once

    4 the Judges have come to the decision on the basis of

    5 all of the evidence that that same party chose to

    6 present. By definition, it excludes the fact that the

    7 Prosecutor might present final arguments such as those

    8 indicated under Rule 86 of the Rules.

    9 Moreover, one must not confuse the notion of

    10 acquittal with that of lack of evidence, that is, no

    11 Prosecution case. This refers to a Prosecution

    12 argument which comes from another case which this Trial

    13 Chamber heard, that is, the Blaskic case.

    14 In the second case it is sufficient for the

    15 Trial Chamber to consider that the Prosecutor has

    16 brought in enough proof for the Defence to be in -- to

    17 have a need to answer; that is, there was a case to

    18 answer. The Defence requested that some of the charges

    19 in the Blaskic be withdrawn, so that things become set

    20 once and for all when, even if the Defence did not

    21 necessarily have the possibility of presenting even

    22 partially its exculpatory proof, the Trial Chamber does

    23 consider that there does at least exist a doubt which

    24 must redound to the benefit of the accused.

    25 In that last case, giving the Prosecutor the



  13. 1possibility of presenting additional evidence would be

    2 tantamount in some way of giving -- I don't like this

    3 term, but we don't have any others -- could have given

    4 a chance, an additional chance -- it's difficult to

    5 talk about chance and good luck in these dreadful

    6 circumstances -- but that would destroy the balance

    7 between the parties, or to allow her, whereas it is by

    8 definition -- the Prosecutor, by definition,

    9 constitutes the fact that the Chamber is going to

    10 render a verdict of not guilty to appeal in -- before

    11 whom? Before the same Trial Chamber -- that is,

    12 ours -- which would, of course, would be illogical and

    13 would not be consistent with the texts which have to

    14 govern the conduct of the trials.

    15 The Prosecutor cannot not also present, at

    16 the proper time, all of the proof which in its opinion

    17 would convince the Trial Chamber in order to wait for

    18 the Defence to present its own evidence.

    19 Lastly, the Prosecutor must, the Prosecutor

    20 must also know the provisions of Rule 98 bis of the

    21 Rules to prepare herself for all possible consequences,

    22 by submitting, at the proper time, to the Trial

    23 Chamber, the conclusions that -- especially the legal

    24 conclusions which the Prosecutor would consider

    25 necessary for the support of its thesis, and under



  14. 1these conditions Prosecutor's motion must be rejected.

    2 What is the Trial Chamber's decision? Now, I

    3 will go to that decision.

    4 Since the Trial Chamber has not heard the

    5 proof that the parties might have wanted to submit for

    6 evaluation of the penalty, that is, the sentence, and

    7 can only pronounce today a verdict of the guilt or

    8 non-guilt, and today it cannot pronounce the sentence.

    9 Moreover, the Trial Chamber has not physically had the

    10 time to draft all of the reasons for its decision, and

    11 I will explain why.

    12 The Trial Chamber must ensure an expeditious

    13 and fair trial and to permit proper administration of

    14 justice. As we have just explained, the Judges, after

    15 the deliberations as to the proof presented by the

    16 Prosecution, unanimously reached the conclusion that

    17 these elements -- I go back to 98 bis -- are

    18 insufficient to sustain a conviction on the crime of

    19 genocide. Therefore, as I said, as provided for under

    20 Rule 98 bis of the Rules, they must inproprio motu

    21 present an acquittal. But it was necessary to inform

    22 the parties thereof rapidly, and specifically the

    23 Defence, because the Defence was -- well, was to begin

    24 to present the presentation of its case on the 8th of

    25 November, and since we saw the Defence for the last



  15. 1time in September, this is the task the Defence was

    2 supposed to work on while thinking whether it would

    3 itself ask for an acquittal.

    4 This is proper for the proper administration

    5 of justice, to be sure that this much energy not be

    6 used in vain and to -- as soon as the Judges had

    7 finished deliberating, to be able to reach a decision.

    8 But the decision today is a public one, and I will have

    9 the occasion to go back to the right of appeal, which

    10 is open, if necessary, to the Prosecutor. Therefore,

    11 we must look through the guiding lines of what led us

    12 to this decision, which means that -- say that why --

    13 why should we acquit Goran Jelisic of genocide and

    14 declare him, however, guilty of crimes -- of war crimes

    15 and crimes against humanity?

    16 Genocide. Reminder as regards genocide:

    17 Goran Jelisic pleaded not guilty. In order to declare

    18 an accused guilty of genocide, the Judges must not only

    19 verify the reality of the facts on which the

    20 Prosecution has based its case -- that is, in this

    21 case, the murder of several dozens of people -- but

    22 must also evaluate beyond the facts the reality of the

    23 criminal mens rea of the alleged persecutor. I'm

    24 asking the Prosecution to listen carefully here,

    25 because this perhaps is the very point which we'll be



  16. 1determining for the subsequent conduct of this trial.

    2 But they must also, beyond the evaluation of the facts,

    3 they must look at the reality of the criminal mens rea

    4 of the alleged perpetrator. One must be sure that the

    5 accused had or did not have the intention to destroy,

    6 in part or entirely, a national, ethnic, racial, or

    7 religious group as such.

    8 The discriminatory intention is not in and of

    9 itself sufficient, and this which distinguishes

    10 genocide from crimes of persecution, which is a crime

    11 against humanity.

    12 In order to convict an accused for genocide,

    13 one must have the proof that he had the will to destroy

    14 the discriminated group, at least in part, or at least

    15 that he had the -- he was fully conscious of the fact

    16 that he was participating, through his acts, in the

    17 commission of a genocide; that is, the destruction, at

    18 least partially, of a discriminated group. It is from

    19 the reality of this will or from this consciousness

    20 that the Judges must be convinced.

    21 From that point of view, the Trial Chamber

    22 considered it not necessary for the accused to have had

    23 the intention to perpetrate crimes over a very broad

    24 geographic area, or that he had the intention to

    25 eliminate a very substantial -- of course, it must be



  17. 1substantial -- part of that population, but the crimes

    2 perpetrated must show that they are perpetrators,

    3 whether he is at a high level or is simply an executor;

    4 had full conscience -- consciousness or the full desire

    5 to seek, to destroy, at least partially, a specific

    6 human group.

    7 At this point, it would perhaps be proper to

    8 go to Article 21 of the Statute, where every person is

    9 considered to be innocent until he has been proved

    10 guilty, realising that, as indicated in Rule 87 of the

    11 Rules, the guilt of the accused must be proved beyond

    12 any reasonable doubt.

    13 In the case in point, the Judges consider

    14 that the Prosecutor has not provided the sufficient

    15 proof which would allow us to establish beyond all

    16 reasonable doubt that Jelisic planned, incited,

    17 ordered, committed, or in any other way participated,

    18 in full consciousness, in the even partial destruction

    19 of the Bosnian Muslim population, as a national,

    20 ethnic, or religious group, and this doubt which must

    21 redound to the benefit of the accused.

    22 Therefore, Goran Jelisic cannot be declared guilty of

    23 genocide.

    24 We will now look at the plea of guilty.

    25 Goran Jelisic pleaded guilty to murders and physical



  18. 1abuse, which are characterised as crimes against

    2 humanity, respectively murders and inhumane acts;

    3 violations of the laws or customs of war, respectively

    4 murders and cruel treatment; as well as for theft

    5 qualified as war crimes, plunder.

    6 Goran Jelisic recognised that he killed at

    7 least 14 persons at the beginning of May 1992,

    8 principally at the Luka camp, where many Muslim

    9 Bosnians were detained, as well as Bosnian Croats. The

    10 accused also admitted that during that period he had

    11 committed serious physical attacks on at least four

    12 people and that he stole money from several detainees.

    13 But a plea of guilt in and of itself is

    14 insufficient in order to form the basis for the

    15 conviction of the accused. The Judges must be sure

    16 that, pursuant to Rule 62 bis of the Rules of Procedure

    17 and Evidence, that the guilty plea is made voluntarily,

    18 that the guilty plea is informed, that the guilty plea

    19 is not equivocal, and that there is sufficient factual

    20 basis for the crimes and the accused's participation in

    21 it, either on the basis of independent indicia or on a

    22 lack of any material disagreement between the parties

    23 about the facts of the case.

    24 The Trial Chamber points out that it is not

    25 important for the parties to be able to reach an



  19. 1agreement on the crime charged, although the Judges do

    2 have to find it -- elements within the case file on

    3 which to base their conviction, both in fact and in

    4 law, which would -- in order to say that the accused

    5 is, in fact, guilty of the crime.

    6 Preliminarily, the Trial Chamber will first

    7 recall that on the 11th of March, already the Trial

    8 Chamber ordered that -- ordered that an evaluation be

    9 carried out in order to be sure that, in light of the

    10 perceptible elements of the accused's personality and

    11 those that were provided in this respect to the

    12 Defence, that Goran Jelisic was in a position to

    13 understand the nature of the accusations against him

    14 and to follow the trial, in full knowledge of what was

    15 happening, and the experts stated that he was.

    16 Moreover, the accused, Goran Jelisic, pleaded

    17 guilty only after long discussions had taken place

    18 between the parties; that is, his Defence counsel, in

    19 the presence of the Judge; that is, the Pre-Trial

    20 Judge, Judge Riad. There was a memorandum of agreement

    21 which came as a result of that, along with its annexes,

    22 shows particularly clear the result of the discussions

    23 as to the nature and to the scope of the crimes

    24 committed by the accused.

    25 In addition, and this goes to



  20. 162 bis, testimony produced by the Prosecution during

    2 the presentation of its case amply confirmed that there

    3 was no possible doubt as to the effective commission of

    4 the acts by Jelisic, that is, acts which he recognised

    5 as being the perpetrator thereof. But Trial Chamber

    6 must still be sure that the legal characterisation

    7 given to the facts is legally founded.

    8 As regards murders and physical violence, the

    9 Trial Chamber is convinced that in this case they are

    10 not only contrary to the rights -- to the law of war

    11 and constitute violations of the laws and customs of

    12 war, but they satisfy all the legal criteria which make

    13 of them crime against humanity.

    14 The Trial Chamber, lastly, considers that the

    15 proof has been established beyond all reasonable doubt

    16 that Jelisic must be found guilty of the crime of a war

    17 of plunder for thefts that were committed against

    18 detainees in the Luka camp.

    19 Finally, the Trial Chamber -- I would like

    20 Mr. Jelisic to rise at this moment.

    21 Mr. Jelisic, would you please stand.

    22 The Trial Chamber now renders its decision.

    23 This is now the disposition of its decision, and let me

    24 remind you that the motivations for the proper

    25 intercession of justice will be given subsequently.



  21. 1The Trial Chamber acquits you of the count of

    2 genocide -- that was Count 1 of the indictment --

    3 declares that you are guilty of Counts 4 to 23, 30 to

    4 33, 36 to 41, for crimes against humanity, murder, and

    5 inhumane acts, and violations of the laws or customs of

    6 war, murder, cruel treatment, and plunder; and guilty

    7 of Count 44, plunder, a violation of the laws or

    8 customs of war, states that the time period provided

    9 for in Rule 108 of the Rules, in order to appeal this

    10 decision, will start to run as of today, but that the

    11 time period provided for under the relevant Articles of

    12 the Rules in order to set up an appeals file case will

    13 begin to run only starting from that point when the

    14 Trial Chamber has rendered its reasons -- decision in

    15 writing, and states that Goran Jelisic will remain in

    16 detention at least until the Trial Chamber has rendered

    17 its decision.

    18 You may be seated. You may be seated now.

    19 The Trial Chamber will now hold a Status

    20 Conference after a brief suspension, in order to set up

    21 a schedule for the possible presentation by the parties

    22 of anything that they wish to put forth in respect of

    23 the sentencing. The Court now stands adjourned.

    24 --- Whereupon the hearing adjourned

    25 at 3.20 p.m., to be reconvened on



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