Assange v Swedish Prosecution Authority

Julian Assange v Swedish Prosecution Authority
Court Supreme Court of the United Kingdom
Full case name Julian Paul Assange v Swedish Prosecution Authority
Argued 1 - 2 February 2012
Decided 30 May 2012
Neutral Citation [2012] UKSC 22
Reported at Assange v Swedish Prosecution Authority
Case history
Prior action(s) Assange v The Swedish Judicial Authority [2011] EWHC 2849 (Admin)
Procedural history The judicial authority in Sweden v Julian Paul Assange (Westminster Magistrates)
Holding
A European Arrest Warrant issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the Extradition Act 2003.
Case opinions
Majority Phillips joined by Brown, Dyson, Kerr, and Walker
Dissent Hale and Mance
Area of Law
Extradition

Julian Assange v Swedish Prosecution Authority is the set of legal proceedings in the United Kingdom concerning the requested extradition of Julian Assange to Sweden to further a 'preliminary investigation'[1] into accusations of his having committed sexual offences. The proceedings began in 2012 and on 12 August 2015, Swedish prosecutors announced that they would drop their investigation into three of the allegations against Assange, because the statute of limitations had expired. The investigation into the allegation of rape continues.[2]

Swedish investigation

Complaints and initial investigation

On 20 August 2010, two women, a 26-year-old living in Enköping and a 31-year-old living in Stockholm,[3][4] went together to the Swedish police in order to track Assange down and persuade him to be tested for sexually transmitted diseases after having separate sexual encounters with him.[5] The police told them that they could not simply tell Assange to take a test, but that their statements would be passed to the prosecutor.[6] Later that day, the duty prosecutor ordered the arrest of Julian Assange on the suspicion of rape and molestation.[7]

The next day, the case was transferred to Chefsåklagare (Chief Public Prosecutor) Eva Finné. In answer to questions surrounding the incidents, the following day, Finné declared, "I don't think there is reason to suspect that he has committed rape." However, Karin Rosander from the Swedish Prosecution Authority, said Assange remained suspected of molestation. Police gave no further comment at that time, but continued the investigation.[8]

After learning of the investigation, Assange said, "The charges are without basis and their issue at this moment is deeply disturbing."[9]

The preliminary investigation concerning suspected rape was discontinued by Finné on 25 August,[7] but two days later Claes Borgström, the attorney representing the two women, requested a review of the prosecutor's decision to terminate part of the investigation.[7][10]

On 30 August, Assange was questioned by the Stockholm police regarding the allegations of sexual molestation.[11] He denied the allegations, saying he had consensual sexual encounters with the two women.[9][12][13]

Investigation reinstated

On 1 September 2010, Överåklagare (Director of Public Prosecution) Marianne Ny decided to resume the preliminary investigation concerning all of the original allegations. On 18 August 2010, Assange had applied for a work and residence permit in Sweden.[14][15] On 18 October 2010, his request was denied.[14][15][16] He left Sweden on 27 September 2010, according to one source with the permission of the Swedish authorities.[17] Another source claims that the Swedish authorities notified Assange's lawyer of his imminent arrest on that same day.[18]

Arrest warrant

On 18 November 2010, Marianne Ny ordered the detention of Julian Assange on suspicion of rape, three cases of sexual molestation and unlawful coercion. The Stockholm District Court acceded to the order and issued a European Arrest Warrant to execute it.[7] The warrant was appealed to the Svea Court of Appeal which upheld it but lowered it to suspicion of rape of a lesser degree, unlawful coercion and two cases of sexual molestation rather than three,[19][20] and the warrant was also appealed to the Supreme Court of Sweden,[21] which decided not to hear the case. At this time Assange had been living in the United Kingdom for 1–2 months. An extradition hearing took place in an English court in February 2011 to consider an application by Swedish authorities for the extradition of Assange to Sweden. The outcome of the hearing was announced on 24 February 2011, when the extradition warrant was upheld. Assange appealed to the High Court, and on 2 November 2011, the court upheld the extradition decision and rejected all four grounds for the appeal as presented by Assange's legal representatives. £19,000 costs was also awarded against Assange. On 5 December 2011, Assange was refused permission by the High Court to appeal to the Supreme Court. The High Court certified that his case raised a point of law of general public importance. The Supreme Court subsequently granted permission to appeal,[22] and heard the appeal on 1 and 2 February 2012.[23] The court reserved its judgment and dismissed the appeal on 30 May 2012.[24] Assange has said the investigation is "without basis". He remained on conditional bail in the United Kingdom[11][25][26] until on 19 June 2012 Assange sought refuge at Ecuador's Embassy in London and was granted temporary asylum. On 16 August 2012 he was granted full asylum by the Ecuadorian government.

Review of detention order

On the 24 June 2014, The Guardian reported[27] that Assange's lawyers filed a request to Stockholm District Court to dismiss his detention,[28] based on an update to Sweden's code of judicial procedure (1 June 2014) to conform with EU law including a new provision that those arrested or detained have the right to be made aware of "facts forming the basis for the decision to arrest".

On 16 July 2014, the Stockholm District Court reviewed the detention order on request by Assange. During the course of the proceedings, Assange's defence lawyers said that the prosecutors have a "duty" to advance the case, and that they had shown "passivity" in refusing to go to London to interview Assange.[29] After hearing evidence, the district court concluded that there was probable cause to suspect Assange of committing the alleged crimes, and that the detention order should remain in place.[30]

In response, Assange's Swedish legal team stated to Radio Sweden: "We still think we have very good legal arguments to get this decision overruled, so we are confident in the result of the appeal. We think the court of appeal can make another decision on the same arguments as the district court."[31] Ecuador immediately issued a statement: "The Ecuadorian Government reaffirms its offer of judicial cooperation to the Kingdom of Sweden, to reach a prompt solution to the case. In this sense Ecuador keeps its invitation to judicial officers visit the London Embassy so that Julian Assange can be interviewed or via videoconference. Both possibilities are explicitly referred in the current procedural legislation in Sweden and the European Union."[32]

On 20 November 2014, the Swedish Court of Appeal refused Assange's appeal, thereby upholding the 2010 detention order.[33]

Extradition process

First instance proceedings

Detention and bail

Assange presented himself to the Metropolitan Police the next morning and was remanded to London's Wandsworth Prison.[34] On 16 December, he was granted bail with bail conditions of residence at Ellingham Hall, Norfolk, and wearing of an electronic tag. Bail was set at £240,000 surety with a deposit of £200,000 ($312,700).[35]

On release on bail, Assange said "I hope to continue my work and continue to protest my innocence in this matter,"[36] and told the BBC, "This has been a very successful smear campaign and a very wrong one."[37] He claimed that the extradition proceedings to Sweden were "actually an attempt to get me into a jurisdiction which will then make it easier to extradite me to the US." Swedish prosecutors have denied the case has anything to do with WikiLeaks.[35]

Extradition hearing

The extradition hearing took place on 7–8 and 11 February 2011 before the City of Westminster Magistrates' Court sitting at Belmarsh Magistrates' Court in London.[38][39] Assange's lawyers at the extradition hearing were Geoffrey Robertson QC and Mark Stephens, human rights specialists, and the prosecution was represented by a team led by Clare Montgomery QC.[40] Arguments were presented as to whether the Swedish prosecutor had the authority to issue a European Arrest Warrant, the extradition was requested for prosecution or interrogation, the alleged crimes qualified as extradition crimes, there was an abuse of process, his human rights would be respected, and he would receive a fair trial if extradited to Sweden.

Extradition decision

The outcome of the hearing was announced on 24 February 2011, when the extradition warrant was upheld.[41][42][43] Senior District Judge Howard Riddle found against Assange on each of the main arguments against his extradition.[44] The judge said "as a matter of fact, and looking at all the circumstances in the round, this person (Mr Assange) passes the threshold of being an accused person and is wanted for prosecution."[44] Judge Riddle concluded: "I am satisfied that the specified offences are extradition offences."[44]

Assange commented after the decision to extradite him, saying "It comes as no surprise but is nevertheless wrong. It comes as the result of a European arrest warrant system run amok."[45]

Appeal to the High Court

On 2 March 2011, Assange's lawyers lodged an appeal with the High Court challenging the decision to extradite him to Sweden.[46] Assange remained on conditional bail.[46][47] The appeal hearing took place on 12 and 13 July 2011 at the High Court in London. The judges' decision was reserved, and a written judgment was delivered on 2 November 2011, dismissing the appeal.[48][49][50][51][52]

Appeal to the Supreme Court

The High Court refused permission to appeal to the Supreme Court, but this was granted by the Supreme Court itself, after the High Court certified that a point of law of general public importance was involved in its decision.

The point of law certified was whether the wording Judicial Authority in the 2003 Extradition Act was to be interpreted as a “person who is competent to exercise judicial authority and that such competence requires impartiality and independence of both the executive and the parties” or if it “embraces a variety of bodies, some of which have the qualities of impartiality and independence …and some of which do not.”[53]

The Supreme Court heard the appeal on 1 and 2 February 2012.[23] The court reserved its judgment,[54] and dismissed the appeal by a 5–2 majority on 30 May 2012.[24][55]

The court granted Assange two weeks to make an application to reopen the appeal after his counsel argued the judgments of the majority relied on an interpretation of the Vienna Convention on the Law of Treaties that was not argued during the hearing.[56] The application was rejected on 14 June, thereby exhausting Assange's legal options in the United Kingdom.[57]

Barring any appeal to the European Court of Human Rights in Strasbourg, extradition was expected to take place over a ten-day period commencing on 28 June 2012.[58]

Ecuador asylum and bail forfeiture

Wikinews has related news: Assange seeks asylum in Ecuadorian embassy

Since 19 June 2012, Assange has lived in the Embassy of Ecuador in London, where he asked for and was granted political asylum.[59] Because Assange did not comply with his bail conditions, his supporters forfeited £93,500.[60]

Assange’s lawyers invited the Swedish prosecutor four times to come and question him at the embassy, but the offer was refused.[61] In March 2015, faced with the prospect of the Swedish statute of limitations expiring for some of the allegations, the prosecutor relented and agreed to question Assange in the Ecuadorean embassy.[62] The UK agreed to the interview in May, but the prosecutor still awaits Ecuadorean approval.[63]

Assange has said he would go to Sweden if provided with a diplomatic guarantee that he would not be turned over to the United States,[64] to which the Swedish foreign ministry stated that Sweden's legislation does not allow any judicial decision like extradition to be predetermined.[65] However, the Swedish government is free to reject extradition requests from non-EU countries, independent of any court decision.[66]

Accusations

Assange is arrested in his absence and wanted for questioning in relation to accusations against him of rape and sexual molestation. This is the first step in the criminal prosecution procedure in Sweden, and only after the questioning will the prosecution authority be able to formally indict him.[6]

l'Espresso document publication

On 20 October 2015, a new batch of documents resulting from a FOIA request to the Swedish authorities filed by the Italian news magazine l'Espresso was published online.[67] They contain records of correspondence between the Swedish Prosecution Authority and the Crown Prosecution Service. A CPS lawyer wrote in an email to Marianne Ny that "it would not be prudent for the Swedish authorities to try to interview the defendant in the UK... He would of course have no obligation under English law to answer any questions put to him.... any attempt to interview under strict Swedish law would invariably be fraught with problems." Referring to the case itself, he wrote, "It is simply amazing how much work this is generating... Do not think that the case is being dealt with as just another extradition request." Assange's legal team stated that, following these revelations, they would probably challenge the extradition request in court again.[68]

Decision to interview Assange in London

In March 2015, Marianne Ny indicated that she would allow Assange to be interviewed in London, and that the interview would be conducted by a deputy prosecutor, Ingrid Isgren, as well as a police investigator.[69] In December 2015, Ecuador stated that it had reached a deal with Sweden which would allow him to be interviewed in the Embassy.[70] In September 2016, Ecuador set a date for Assange's interview over the rape allegation. The date was 17 October 2016. It was established that the interview would be conducted by an Ecuadorian prosecutor, with Isgren and a police officer present.[71] The interview was subsequently postponed until 14 November 2016, "to ensure the presence of Mr Assange’s attorneys," according to a spokesman for Assange’s legal team.[72]According to Assange's lawyer, the "shape" of the questions was still being discussed a week before the scheduled interview.[73]

Inquiry into three of the allegations dropped

On 12 August 2015, Swedish prosecutors announced that, as the statute of limitations for two of less serious allegations has run out, and they had not succeeded in interviewing Assange, they would end part of their preliminary investigation. After 18 August 2015, Assange can no longer be charged for any of the three less serious charges. However, the preliminary investigation into the allegation of rape still continues, as the statute of limitations here will only expire in 2020.[2]

Ruling of arbitrary detention by UN Working Group and move to lift European arrest warrant

On 5 February 2016, it was announced by the Office of the United Nations High Commissioner for Human Rights that the Working Group on Arbitrary Detention had found that Assange is effectively being held in arbitrary detention by the UK and Swedish governments.[74] High Commissioner Zeid Ra'ad al Hussein stated later the same month that the ruling is based on binding international law.[75] Immediately following the ruling, Assange's lawyers asked the Stockholm District Court to lift the European arrest warrant.[76] On 14 April, the Swedish prosecution authorities responded saying the warrant should be upheld.[77] The Svea Court of Appeal decided to uphold the warrant on 16 September.[78][79] After being asked by the British to review the case, the Working Group on Arbitrary Detention formally declined to so in late November, saying that there was not enough new information provided to warrant such a review.[80]

References

  1. ↑ Douglas Stanglin (September 2010). "Sweden reopens rape investigation against Wikileaks founder Julian Assange". USA Today.
  2. 1 2 Hawley, Caroline (12 August 2015). "Assange Assault Inquiry to Be Dropped". BBC.
  3. ↑ Cody, Edward (9 September 2010). "WikiLeaks stalled by Swedish inquiry into allegations of rape by founder Assange". The Washington Post. Retrieved 9 September 2010.
  4. ↑ "Sex accusers boasted about their 'conquest' of WikiLeaks founder Julian Assange". The Times of India. 9 December 2009. Retrieved 10 December 2010.
  5. ↑ Hosenball, Mark (7 December 2010). "Special Report: STD fears sparked case against WikiLeaks boss". Reuters. Retrieved 2011-03-29.
  6. 1 2 Nick Davies (17 December 2010). "10 days in Sweden: the full allegations against Julian Assange". Guardian. Retrieved 2011-03-11.
  7. 1 2 3 4 "Chronology". Swedish Prosecution Authority. Retrieved 28 November 2012.
  8. ↑ "Swedish rape warrant for Wikileaks' Assange cancelled". BBC. 21 August 2010.
  9. 1 2 Davies, Caroline (22 August 2010). "WikiLeaks founder Julian Assange denies rape allegations". The Guardian. Retrieved 19 February 2011.
  10. ↑ "Timeline: sexual allegations against Assange in Sweden". BBC News. 16 August 2012.
  11. 1 2 "WikiLeaks founder Julian Assange questioned by police". The Guardian. 31 August 2010. Retrieved 19 February 2011.
  12. ↑ Leigh, David; Harding, Luke; Hirsch, Afua; MacAskill, Ewen (30 November 2010). "WikiLeaks: Interpol issues wanted notice for Julian Assange". The Guardian. Retrieved 1 December 2010.
  13. ↑ "Assange charges: Consensual sex or rape?". msnbc.com. 8 December 2010. Retrieved 19 February 2011.
  14. 1 2 "Timeline: sexual allegations against Assange in Sweden". BBC News. 2010-12-16. Retrieved 2011-03-29.
  15. 1 2 "Assange denied Swedish residence permit". The Local - Sweden. 18 October 2010. Retrieved 5 March 2011.
  16. ↑ "Rundle: timeline of Assange's visit to Sweden and events that followed". Crikey. Retrieved 2011-03-29.
  17. ↑ Esther Addley (8 February 2011). "Julian Assange's accusers sent texts discussing revenge, court hears". Guardian. Retrieved 2011-03-12.
  18. ↑ Whalen, Jeanne (8 February 2011). "Sweden Questions Assange's Departure". The Wall Street Journal.
  19. ↑ "Wikileaks' Assange faces international arrest warrant". BBC News. 20 November 2010.
  20. ↑ "Wikileaks' Julian Assange loses extradition appeal". BBC News. 2 November 2011.
  21. ↑ "Supreme Court Protocoll" (PDF). undermattan.com. Retrieved 2012-11-28.
  22. ↑ "Julian Assange wins right to pursue extradition fight". The BBC. 5 December 2011. Retrieved 13 December 2011.
  23. 1 2 Assange extradition case is heard by Supreme Court
  24. 1 2 "Julian Assange loses extradition appeal at Supreme Court". BBC News. 30 May 2012. Retrieved 30 May 2012.
  25. ↑ "Tell-All on WikiLeaks' Assange Coming out in March". ABC News. 18 February 2011. Retrieved 19 February 2011.
  26. ↑ "Wikileaks' Assange appeals over Sweden arrest warrant". BBC News. 1 December 2010. Retrieved 19 February 2011.
  27. ↑ "Julian Assange makes fresh bid to break deadlock in Swedish rape case". The Guardian. 24 June 2014.
  28. ↑ "Assange files case to dismiss Swedish warrant". Justice for Assange. On Tuesday 24th of June at 1pm CET, Julian Assange’s lawyers filed a request to Stockholm District Court to rescind the decision to detain him without charge.
  29. ↑ Crouch, David (17 July 2014). "Julian Assange's lawyers will appeal against ruling to uphold arrest warrant". The Guardian. Retrieved 17 July 2014.
  30. ↑ "Decision concerning a detention order". domstol.se. Retrieved 2014-07-16.
  31. ↑ "Assange team confident of Appeal Court win". 17 July 2014.
  32. ↑ "Ecuador reaffirms its commitment in defense of human rights, freedom and the life of Julian Assange". 16 July 2014.
  33. ↑ "Swedish court upholds Assange order". BBC News. 20 November 2014. Retrieved 20 November 2014.
  34. ↑ Addley, Esther (17 December 2010). "Q&A: Julian Assange allegations". The Guardian. Retrieved 19 February 2011.
  35. 1 2 "Extradition part of 'smear campaign': Assange". The Local. 17 December 2010. Retrieved 20 February 2011.
  36. ↑ Coles, Isabel; Ormsby, Avril (16 December 2010). "WikiLeaks' Assange walks free on bail in London". Thomson Reuters. Retrieved 16 December 2010.
  37. ↑ Ormsby, Avril (17 December 2010). "WikiLeaks' Julian Assange says he is victim of smear campaign". The Vancouver Sun. Retrieved 20 February 2011.
  38. ↑ "Besieged Assange hires PR team". The Sydney Morning Herald. 8 January 2011. Retrieved 8 January 2011.
  39. ↑ Addley, Esther (11 January 2011). "WikiLeaks: Julian Assange 'faces execution or Guantánamo detention'". The Guardian. Retrieved 13 January 2011.
  40. ↑ "Lawyer: WikiLeaks Founder Cannot Get Fair Trial in Sweden". Voice of America. 11 February 2011. Retrieved 11 February 2011.
  41. ↑ Dodd, Vikram (8 December 2010). "Julian Assange extradition attempt an uphill struggle, says specialist". The Guardian. Retrieved 19 February 2011.
  42. ↑ Jeffery, Simon (8 February 2011). "Julian Assange extradition hearing – final day live updates". The Guardian. Retrieved 11 February 2011.
  43. ↑ "Wikileaks founder Julian Assange refused bail". BBC News. 8 December 2010. Retrieved 8 December 2010.
  44. 1 2 3 Coleman, Clive (24 February 2011). "Wikileaks' Julian Assange handed 'resounding defeat'". BBC News. Retrieved 25 February 2011.
  45. ↑ Addley, Esther; Topping, Alexandra (24 February 2011). "Julian Assange attacks 'rubber-stamp' warrant as he loses extradition battle". The Guardian. Retrieved 25 February 2011.
  46. 1 2 Meikle, James (3 March 2011). "Julian Assange lodges extradition appeal". The Guardian. Retrieved 5 March 2011.
  47. ↑ Gordon, PA, Cathy (3 March 2011). "WikiLeaks' Assange appeals against UK extradition". Reuters. Retrieved 5 March 2011.
  48. ↑ Assange v. Swedish Prosecution Authority [2011] EWHC 2849 (Admin)
  49. ↑ "Assange case set for July". The Independent. 7 April 2011. Retrieved 9 April 2011.
  50. ↑ "Wikileaks' Julian Assange extradition decision deferred". BBC News. 13 July 2011.
  51. ↑ Booth, Robert; Addley, Esther (28 October 2011). "Julian Assange extradition judgment due on Wednesday". The Guardian.
  52. ↑ http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/assange-summary.pdf
  53. ↑ "Supreme court judgement" (PDF). the Supreme Court of the United Kingdom. 2012-05-30. Retrieved 2012-12-04.
  54. ↑ Owen, Paul (2 February 2012). "Julian Assange extradition appeal at supreme court - Thursday 2 February". The Guardian.
  55. ↑ Assange v The Swedish Judicial Authority [2012] UKSC 22
  56. ↑ "Further statement – Julian Assange v Swedish Prosecution Authority," United Kingdom Supreme Court, 30 May 2012. Accessed 30 May 2012.
  57. ↑ Julian Assange v Swedish Prosecution Authority: Application to re-open appeal, Supreme Court, 14 June 2012. Accessed 18 March 2014.
  58. ↑ "Assange loses final legal bid to block extradition to Sweden," Zee News, 14 June 2012. Accessed 14 June 2012.
  59. ↑ Reuters, 19.06.2012
  60. ↑ Booth, Robert (2012-10-08). "Julian Assange supporters ordered to forfeit £93,500 bail money". The Guardian. ISSN 0261-3077. Retrieved 2016-09-25.
  61. ↑ http://www.smh.com.au/national/wikileaks-founder-julian-assange-to-release-files-on-50-countries-20140619-zse02.html
  62. ↑ http://www.bbc.com/news/world-europe-31867829
  63. ↑ http://www.telegraph.co.uk/news/worldnews/wikileaks/11681502/Why-is-Julian-Assange-still-inside-the-embassy-of-Ecuador.html
  64. ↑ AFP (24 June 2012). "WikiLeaks founder wants guarantee he won't be sent to US". Agence France-Presse. Retrieved 16 August 2012.
  65. ↑ Guardian, September 2012
  66. ↑ "Extradition for Criminal Offences". The Government Offices of Sweden. April 13, 2015. Retrieved 2015-06-22. The Government can, however, refuse extradition even if the Supreme Court has not declared against extradition, as the law states that if certain conditions are fulfilled, a person "may" be extradited - not "shall" be extradited.
  67. ↑ Five years confined: New Foia documents shed light on the Julian Assange case, 20 October 2015
  68. ↑ Julian Assange lawyers may launch new appeal against extradition in light of CPS emails, 20 October 2015
  69. ↑ David Crouch (13 March 2015). "Julian Assange to be questioned by Swedish prosecutors in London". Guardian. Retrieved 2011-03-17.
  70. ↑ Jessica Elgot (12 December 2015). "Julian Assange may face Swedish interrogation within days". Guardian. Retrieved 2015-12-14.
  71. ↑ Reuters (14 September 2015). "Date set for questioning of Julian Assange over rape allegation". Guardian. Retrieved 2016-10-16.
  72. ↑ Esther Addley (12 October 2015). "Date set for questioning of Julian Assange over rape allegation". Guardian. Retrieved 2016-10-17.
  73. ↑ "Julian Assange to be questioned by Ecuador over rape allegation". Guardian. 7 November 2016. Retrieved 9 November 2016.
  74. ↑ "Julian Assange arbitrarily detained by Sweden and the UK". Office of the United Nations High Commissioner for Human Rights. Retrieved 7 February 2016.
  75. ↑ "Britain, Sweden should accept Assange ruling: UN rights chief". Haveeru.com. 10 February 2016. Retrieved 13 February 2016.
  76. ↑ "Assange lawyers request overturn of arrest warrant.". Newsmax.com. 22 February 2016. Retrieved 16 April 2016.
  77. ↑ Dickson, Daniel (14 April 2016). "Swedish prosecutors argue for upholding Assange arrest warrant.". Reuters.com. Retrieved 16 April 2016.
  78. ↑ "Swedish appeals court upholds Assange detention order". al-Jazeera. 16 September 2016. Retrieved 17 September 2016.
  79. ↑ " Julian Assange's Arrest Warrant in Rape Case Upheld by Swedish Court"NBC News, 16 September 2016, Accessed 16 September 2016.
  80. ↑ "UN panel: WikiLeaks' Assange a victim of arbitrary detention". The Daily Star (Lebanon). Associated Press. 30 November 2016. Retrieved 1 December 2016.

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