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Commission Report (2002): Poland

Subsections

Chapter 24: co-operation in the field of justice and home affairs

Progress since the last Regular Report

Since the 2001 Regular Report, further progress has been made in Poland in the fields of data protection, migration, asylum and police co-operation. Little progress can be reported as regards visa policy, fight against organised crime and money-laundering. Severe budget constraints have been experienced both in the areas of border management and combating of organised crime. In particular, staffing problems in the Border Guard remain.

Poland has made decisive progress in aligning its legislation on data protection with the acquis. The amendments to the Personal Data Protection Act of June 2001, which in turn amended the Law of 1997, are now fully in line with the acquis. The provisions concerning the processing of sensitive data and liability were addressed. The 1981 Convention of the Council of Europe for the Protection of Individuals with Regard to Automatic Processing of Personal Data was ratified in May 2002. The Convention entered into force for Poland in September 2002. The body responsible for data protection, the Bureau of the Inspector General for Personal Data Protection (GIODO), currently employs a staff of 99, of whom only 14 are directly involved with the inspection process. The Inspector General has a wide range of powers, including the right to intervene for the purpose of correcting or erasing personal data contained in data files. The institution also issues opinions on bills and regulations with respect to the protection of personal data and deals with complaints lodged by the public (see Chapter 3 -- Freedom to provide services).

As far as visa policy is concerned, adjustments have been made since the last Regular Report to the timetable set out in the Polish National Programme for Preparations for membership for completing alignment with the acquis. Visas for Cuba were introduced, with some delay, in February 2002. As a first step in introducing visas with the Russian Federation, Belarus and Ukraine, in May 2002 Poland notified the national authorities about the termination of the agreement of 1985 (with the then Soviet Union) on simplified border crossing with these countries. The termination will take effect 12 months after notification, but until the full introduction of visas this measure is not expected to have a marked impact on bilateral traffic with these countries, since the agreement with the Russian Federation has in essence been frozen since 1994, and those for Belarus and Ukraine nationals concern about 6000 people a year. FYROM was notified in July 2002 of the termination of the visa-free agreement, with effect as of November 2002.

With regard to development of human and material capacity during the reporting period, in December 2001 the Ministry of Foreign Affairs established a co-ordination Unit for preparations for the introduction of the EU visa regime with the Russian Federation, Belarus and Ukraine as from July 2003. The plans include the development of infrastructure, including the opening of 2 new consulates in Ukraine (in Lutsk and Odessa), adjustments at 10 existing consulates in the Russian Federation, modernisation of three consulates in Belarus, information technology equipment, staffing and training. The design phase of the information technology infrastructure for delivering visas in consular posts abroad has been almost completed, but implementation is not yet evident. Little progress seems to have been made since October 2001.

Following the extension of the list of countries subject to visa obligations before entering Poland, the number of visas issued in the consular posts increased in 2001 to some 244 000, which was a 30% increase compared to 2000. The number of visas issued in Poland at the voivodship level (figures originating from the Office for Repatriation and Aliens) has, conversely, decreased, following the entry into force of the new Aliens Law, in July 2001. In 1998, almost 44 000 visas had been issued in Poland, compared to 13 446 in 2000 and 11 232 in 2001. In December 2001 a decision was taken by the Chief of the Border Guard Headquarters in consultation with the Ministry of Foreign Affairs to radically decrease from January 2002 the number of visas issued at border crossings. Actual practice should be in line with Schengen rules, which provide for visa issuance at the border only in exceptional cases. The results are tangible: whereas 2 825 visas were issued at the borders in the first quarter of 2001, only 256 were issued during the same period of 2002, which means a decline of more than 90%.

Continued progress can be noted as regards the management of the external borders and preparations for Schengen, in spite of considerable financial constraints on implementing foreseen improvements, in particular recruitment, as scheduled.

Traffic continued to decrease at the borders during 2001 and the first months of 2002 (18.9% in 2001). This decline mostly concerned foreigners (-28%), while only a slight decline in the number of Polish citizens was noted (-5%). Small border traffic also declined significantly (-31.6%). In terms of illegal attempts to cross the border to and from Poland, an overall decline was recorded (-6.5%). The situation was, however, not uniform: the number of people apprehended at the eastern border increased (+5.6%). More than 50% of all those apprehended were stopped outside border crossing points. The number of re-admissions continued to fall: 11 299 people were readmitted to Poland in 2000, against 7 623 in 2001 (-32.5%). This involved 2 224 foreigners in 2001, against 2 414 in 2000 (-7.9%). More than 90 % of these were readmitted from Germany. With regard to checks on the legality of stay, the number of apprehended foreigners increased by 8% and the number of expulsions by 4.6%. The pressure at the eastern border remains substantial, but the detection rates indicate a significant increase in efficiency by the Border Guard, be it in terms of the still rising number of entry refusals, apprehensions of foreigners at and outside official border crossing points, or the still decreasing readmission rate from Germany.

With regard to implementation of the Schengen Action Plan, one of the main elements the division of internal and external traffic, at both air- and sea ports, is proceeding at a slow pace with only three airports having been identified for adaptation.

The tightening of the network of border patrol units along the eastern border is broadly following the plans of the Border Management Strategy of June 2000. In 2001, another five new border patrol units went into service at the border with Belarus (Plaska, Dolhobrody and Narewka) and Ukraine (Krylow and Horodlo). An additional unit in Huwniki was opened in June 2002. The land border surveillance system was further strengthened in the first half of 2002 through the upgrading of a range of surveillance equipment. By 30 June 2002 all border stations had been connected to a dedicated communications network the POLPAK-T, replacing the traditional telephone system.

As regards training of border guard officers, the necessary legal provisions have been made, which made it possible to start implementation of a new training concept in May 2002.

Recruitment remains, however, a major problem and a weak point for the Border Guard, as the plans to make the service fully professional have been repeatedly delayed since the Border Management Strategy of June 2000 was agreed. For the time being, no shift from the western to the eastern border is in evidence, except that since 2001 all new recruits are being posted to the future external borders and staff retiring from postings on the western border are not being replaced.

A co-operation agreement on combating cross-border criminality was signed with Germany in February 2002 between Border Guards and police services functioning on both sides of the border. A first special contact point for combating cross-border crime was opened at the Polish-Lithuanian border in March 2002.

The location of the future national interface for the Schengen Information System (SIS) II has changed. It was originally to be an administrative entity enjoying some degree of autonomy within the structure of the Ministry of Internal Affairs, but is now to be located within the KCIK (National Centre for Criminal Information).

As regards migration, there have been few new developments. Since the entry into force of the New Aliens Act in 2001, Poland complies to a large extent with the migration acquis. In terms of administrative structure, the staffing of the Office for Repatriation and Aliens (ORA), which was set up in July 2001, has not significantly increased. This is both because of budgetary constraints and because at the time when the 2002 budget was prepared, the government was seriously considering dismantling the then six month old office as one element in its broader restructuring of the Polish administrative system (see Section B.1. -- Political criteria).

In respect of asylum, Poland experienced a slight decrease in asylum applications in 2001 (4 513) compared to 2000 (4 644). Among the main candidates for asylum, Russian Federation nationals continued to be the most numerous with 1 493 applications, most of them lodged by Chechens. Asylum-seekers originating from Armenia came second with 636, and Afghan nationals third with 414. The number of positive decisions remains very low: 282 at first instance (104 in the first half of 2001, and 178 in the second, i.e. after the entry into force of the new Aliens Act), which means a recognition rate of slightly more than 5%. Readmission agreements were signed with Spain and Austria in May 2002 and June 2002 respectively.

The reception centres have seen the duration of stay extend significantly during the reporting period. This would indicate that asylum-seekers more and more often prefer to stay in Poland until at least a decision has been given. This development has resulted in capacity being exceeded by 50% (1 506 asylum-seekers being hosted in slightly less than 1000 places as at August 2002). In view of the current situation and possible developments after accession, ORA has developed a plan aimed at strengthening the network of reception centres (all situated in the eastern-central part of Poland). Integration of refugees and protection of unaccompanied minors (11 unaccompanied minors were being accommodated in the reception centres in March 2002) remain a problem, with limited resources being available to assist in the process.

In the field of police co-operation and the fight against organised crime, it should be noted that the process of ratification of the co-operation agreement between Poland and Europol was accomplished in July 2002. In November 2001, a new organisational unit for co-operation with Europol was established within the Office for International co-Operation of the Police. In February 2002, an agreement on police co-operation and organised crime was signed with Germany. This agreement allows, inter alia, for joint cross-border surveillance. The 2000 UN Convention against Transnational Organised Crime (Palermo Convention) was ratified by Poland in November 2001. As for its three protocols, the two protocols concerning trafficking in human beings and smuggling of migrants were signed but have not yet been ratified; the third protocol, on firearms has not been signed.

The Act of July 2001 on collecting, processing and communicating criminal information entered into force in April 2002. Further amendments concerning the institutional framework of the National Centre for Criminal Information (KCIK) are being prepared. There has been a reversal in the trend of criminal offences and the crime detection rate, which demonstrate both successes and shortcomings in the work of the Polish police. In 2001, the number of criminal offences reported in Poland declined by 26 000 cases to 1 107 073. The upward trend from 1997 to 2000 seems to have stopped. The overall crime detection rate in 2001, for the first time since 1998, passed the 50 % mark, reaching 53.8 %, which continued the positive trend of 2000.

The rate of common criminal offences, such as car theft, thefts with break-in or burglary, declined considerably in 2001, which might reflect the first effects of the implementation of the plan to fight common crime launched in February 2001. In contrast to this development, in other categories more crimes occurred, especially in the area of drug-related crime, economic crime, corruption-related crime and forgery.

The staffing situation in the police remains difficult. In January 2002 the Police had 103 309 available posts out of which 100 725 were actually filled, resulting in 2 584 vacancies. This represents a small increase in posts available, up by 514, and posts filled, up by 535, compared to 2001. The Central Bureau for Investigation (CBI), set up in 2000, continues to be a key actor in the police's efforts to combat organised crime. Recruitment to the CBI is proceeding rather slowly owing to budgetary restrictions. The current staffing is 1 476 with 431 vacancies.

The strategy to upgrade technology in the police service has continued. On the regional level, the main high-speed telecommunications nodes are coming on stream in the police stations. The extension and strengthening of the national police network also comprise the purchase of terminals, to give an increased number of police officers access to the central databases. The integration of different databases has started and is a continuing exercise. The Automated Fingerprint Identification System (AFIS), set up centrally in early 2000, is being extended to regional and local levels.

As regards the fight against fraud and corruption, Poland has made some progress in terms of legislative alignment over the reporting period. The ratification of the 1999 Council of Europe Civil Law Convention was completed in September 2002. Institutional developments have been piecemeal, but an anti-corruption strategy was adopted by the Council of Ministers in September 2002 (see Section B.1.1. -- Democracy and the rule of law). No further legislative developments are to be reported as regards alignment with the Convention on the protection of the financial interests of the European Communities.

Further progress has been made in the field of drugs. The Council for the Prevention of Drug Addiction was formally established in March 2001, in June 2002 the Council became operational by the decision to appoint its members. Poland continues to be an important drug-producing country, mainly of synthetic drugs and amphetamines, as well as a consumer country. To respond to this threat a new Drugs strategy was approved in July 2002. Some legal changes in the law to counteract drugs came into force in January 2002, introducing stronger controls on the import and export of different groups of precursors.

In the area of money laundering (see also Chapter 4 -- Free movement of capital and section B.1.1. -- Democracy and the rule of law) Poland's international co-operation intensified. Poland initiated further co-operation with the Egmont Group, the Council of Europe, and the Task Force on the Fight against Organised Crime in the Baltic Region. Poland has signed a co-operation agreement with the Latvia.

There has been little progress in aligning Polish legislation with the acquis as efforts and attention were focused on an initiative which provides for not only registration but also reports of all transactions over EUR 15,000 Euro, even if they are not suspect. These plans would have placed a huge administrative burden on the General Inspectorate for Financial Information and are under review.

With regard to customs co-operation, this area has been subject to important organisational changes. On 30 April the Central Board of Customs (CBC) was dissolved, and on 30 June, the General Customs Inspectorate was liquidated. The law stipulates that some functions and tasks of the Central Board of Customs will be taken over by the Ministry of Finance, and the remaining functions will be delegated to lower levels of the customs administration. The Act on Liquidation of the General Customs Inspectorate entered into force in July 2002, with the exception of the operational powers for customs officials, which will enter into force in January 2003.

Further progress has been made in the field of customs co-operation. In April 2002 Polish authorities concluded three Memoranda of Understanding with business organisations to combat drug trafficking. Agreements for mutual assistance with Slovenia and Macedonia have reached a final stage and talks continue with other countries. Steps have been taken to improve relationships with other authorised agencies at both central and local level. Better co-operation has been achieved with the veterinary and phytosanitary inspectorates.

Progress has been sustained also in the area of judicial co-operation in criminal and civil matters, which continues to be based both on international conventions and on a vast series of bilateral agreements covering issues such as the direct transmission of requests, spontaneous information, requests for extradition, and the transfer and enforcement of criminal judgements, whose implementation is satisfactory.

The training of staff dealing with international co-operation in the Ministry of Justice has continued over the reporting period. Better regulation of the secondment of magistrates to other institutions was introduced in the Act on the Constitution of Common Courts, which entered into force in October 2001.

Plans have been finalised to create a Polish judicial network that will become part of the European Judicial Network after accession. Contact authorities have been designated: 40 judges and 20 prosecutors. Care has been taken to ensure a rational geographical distribution, with a specific focus on cross-border co-operation in organised crime issues. One public prosecutor was nominated in April 2002 as the contact person for co-operation with EUROJUST.

Overall assessment

The legal framework is broadly in line with the acquis although progress with regard to the capacity to implement has been rather limited. This has been put under significant constraint because of the recent budgetary crisis, which has limited recruitment and training in all areas of justice and home affairs, and also limited the purchase of equipment required for satisfactory implementation of the new acquis-related legislation. In addition the impact of the broader restructuring of the Polish administration on the capacity to implement the acquis in this field remains to be seen.

In the field of data protection, the ratification of the Council of Europe 1981 Convention on the Protection of Personal Data has ensured full legal compliance. co-operation of the Inspectorate General for Personal Data Protection with law enforcement agencies should be further enhanced in order to ensure full implementation.

Further efforts are required with respect to visa policy. The most difficult aspects of achieving full alignment with the EU visa acquis remain to be tackled. Poland still has to make provision for introducing visas for three of the countries with EU visa obligations: the Russian Federation, Belarus and Ukraine. As for the EU visa-free travel list, Poland has not yet completely aligned its visa policy. Indeed, nationals of some countries on that list are still required to obtain visas for travel to Poland (Australia, Canada, Brunei, Guatemala, Panama, El Salvador, New Zealand and Venezuela). Moreover, further adjustments may be required to the ``invitation'' procedure so as to address concerns that it does not fully meet the requirements of the acquis. Alignment with the list of countries for airport transit visas is also needed.

The full alignment of the Polish visa policy will require a very significant strengthening of the administrative capacity to enable a number of visas several times greater than the current rate to be issued. Substantial efforts are required in terms of staff, since the consular staff should be considerably increased, and in terms of infrastructure, notably the extension of the consular network and the related information technology systems to diplomatic and consular representations and border crossing points. The equipment required for the detection of falsified documents, as recommended in the Council recommendations of May 1998 and April 1999, is not yet in place. The same applies for most of the border crossing points. Full compliance is still needed as regards the visa sticker and its security features.

Further progress has been made towards the management of the future external borders, as confirmed by positive statistical trends on detection of illegal migrants along the eastern border and re-admission from Germany. The implementation of the border management strategy has been more limited than during the previous reporting period, primarily for budgetary reasons. The networking of patrol units continues at a satisfactory pace, but the establishment of a fully professional Border Guard has been significantly delayed. In addition to this, the Polish border guard is still facing over 30% vacancies. Poland needs to take further steps to improve the quality of the control of the borders by increased numbers of specialised trained professionals, properly equipped and with the powers to tackle border-related crime. This cannot be achieved without the necessary funding and enhanced co-operation between all authorities, working in the field of border security.

Preparation with regard to Schengen provisions relevant for accession is still broadly satisfactory, but significant efforts will be needed to achieve the timely lifting of internal borders and full implementation of the Schengen acquis after EU accession. Indeed, separation of traffic at air- and seaports should be the subject of active attention. The preparation of the future national interface for SIS II is still at a very preliminary stage, in terms of both the development of national applications and the setting up of a national platform.

The handling of migration has in general improved over the past year. Some legal adjustments are still required. These include adjustments to legislation on seasonal work and the admission of third-country nationals for study purposes. There is also a need to bring in line with EU standards the uniform format for the residence permit, and resolve an apparent contradiction between the provisions of the Aliens Act and the European Convention on Human Rights as regards appeal procedures in expulsion cases. Further work is also needed to increase the number of agreements on voluntary return.

As for the fight against illegal migration and employment, full co-ordination between the Ministry of Labour and the relevant law enforcement agencies is required. Further integration measures for legal migrants would be a constructive step. The establishment of a central authority in charge of migration issues, the Office for Repatriation and Aliens, has been positive. Its administrative capacity should be further strengthened. Harmonised implementation of the provisions of the 2001 Aliens Law at regional level still needs to be fully ensured. A coherent system of training for the staff of Polish migration services needs to be developed. Poland should pursue its efforts to conclude readmission agreements with the Russian Federation and Belarus.

Positive developments are also noted in the field of asylum, where the Office for Repatriation and Aliens is the lead authority. The 2001 amendments to the Aliens Law have resulted in greater efficiency of the office. Further analysis of the legislation has shown that complete alignment with the acquis provisions and more transparent legislation are to be achieved through new legislation, which should focus only on asylum and related temporary protection issues. Preparations should be accelerated for the full implementation of ``Eurodac'' for the comparison of fingerprints. Further preparation for full co-operation in the framework of the criteria and mechanisms for determining the responsible Member State (Dublin Convention) should include training and the setting up of a co-operation unit. The reception facilities need increased capacity, significant upgrading and special provision for following up special applicants, such as unaccompanied minors. Integration of refugees remains weak and requires specific attention.

In the area of police co-operation and combating organised crime, efforts are still required to ensure that Poland has an accountable, reliable and fully co-ordinated police organisation by accession. Special attention needs to continue to be dedicated to the co-operation and co-ordination between the police and the prosecuting and judicial bodies, including for cases of a cross-border nature. There is a rising trend in economic and organised crime, and efforts to combat it need to be stepped up. The severe budgetary constraints, experienced already in 2001 and even worse in 2002, have caused a shortage of personnel and of equipment.

International co-operation has been further developed through the ratification of the Europol agreement and also through additional bilateral agreements. This positive development contrasts with the problems experienced in some inter-agency co-operation, which was especially affected by the reorganisation of the Polish agencies in the customs area and the state protection office. These difficulties in the area of co-operation hamper increased efficiency in the fight against organised and economic crime. To improve such co-operation mutual access to databases through the National Centre for Criminal Information (KCIK) is necessary. Under the mandate set out in the Act on gathering, processing and transmitting criminal information, which entered into force in April 2002, the KCIK will collect and store in one single institution criminal information regarding, for example, cases being investigated, criminal proceedings or fiscal proceedings pending. The Centre is to become the National Interface for the SIS II. Statistical instruments for measuring crime rate should be improved, while new methods of technical crime investigation, including development of forensic investigation should be further developed.

In the fight against terrorism further efforts are required to fully comply with the acquis and other international standards on the fight against the misuse of the financial system and terrorism. Poland needs to sign and ratify the protocol on firearms to the 2000 UN Convention against Transnational Organised Crime and ratify the protocols concerning trafficking in human beings and illegal migration.

With respect to the fight against fraud and corruption, in legislative terms Poland needs to adopt amendments to the Penal Fiscal Code and the Penal Code, in particular so as to make a specific reference to Community Funds in order to avoid ambiguous interpretation of the concept of public funds. The Penal Code still needs to be amended to align it further with the 1997 Convention on the Fight against Corruption involving officials of the EC or officials of Member States of the European Union and the 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. More broadly, determined implementation of the recently adopted anti-corruption strategy is needed, along with further strengthening of administrative capacity. Poland should pay more attention to the fact that prevention through transparency and accountability standards is as important as repressive tools. Continuity of the work of OLAF in Poland needs to be ensured.

Poland's legislation does not yet cover liability of legal persons in the case of fraud and needs still to comply with the requirements on jurisdiction. The ratification of the 1999 Council of Europe Criminal Law Convention on Corruption is also necessary. Efforts to set up an independent structure combating financial abuse should be speeded up as should efforts to achieve final legislative alignment with the Convention on the Protection of the Financial Interests of the European Communities.

Progress has been made in the legal aspects of the fight against drugs, but development over the past two years has been very slow, with the development of the necessary administrative capacity hampered by limits on budget and resources. It should be noted that the recently adopted Drugs strategy is not accompanied by a significant increase in resources to ensure its effective implementation. Many different actors are involved in the fight against drugs, which makes co-operation and decision-making difficult. Poland should adopt and implement a balanced and co-ordinated National Drugs Strategy and intensify its co-operation with Member States and Europol. Fight against drug production and trafficking, especially synthetic drugs, should be strengthened both at the borders and inland.

Poland should speed up its preparation for the future co-operation with the European Centre for Drugs and Drugs Addiction (EMCDDA), especially as regards institution building (the national focal point which is to be put in the National Information Centre for Drugs and Drug Addiction). Legislation on drug precursors is aligned with the acquis.

Poland needs to ensure the effective transposition and implementation of the acquis on money laundering by accession, making sure that the relevant provisions obliging reporting entities to identify customers for transactions of 15 000 or more and to keep records of such transactions are in place.

Of particular importance are increased efforts in terms of providing appropriate training to all professionals involved in the entire chain of institutions for combating money laundering. Furthermore the Financial Intelligence Unit needs to be strengthened by providing it with appropriate staff, equipment and training. In the area of customs co-operation, there is broad alignment as regards agreements for increased co-operation with other authorised agencies, foreign customs authorities and the trading community. Efforts are being made to work more closely with the Border Guard. More co-operation at all levels is required to bring the two services together so as to achieve a more efficient performance at the border posts. Poland should speed up preparations to accede to the Naples II Convention and the CIS Convention. Furthermore, competence and rights in operational activities should be clearly defined in the light of the administrative changes which have taken place recently in the customs administration. Finally, an enhanced role for the new customs structure in operational activities would assist in the fight against corruption. In terms of administrative capacity, the appropriate resources need to be allocated to the new structure so as to ensure its effective operation.

The process of accession to international conventions constituting the acquis in the area of judicial co-operation in civil and criminal matters has been sustained. Judicial co-operation can be considered satisfactory across a range of issues, such as the direct transmission of requests, spontaneous information, requests for extradition or the transfer and enforcement of criminal judgements. Poland still needs to ratify the Council of Europe Convention on Cybercrime. Poland should take further measures to ensure the implementation of the Community instruments in the area of judicial co-operation in civil matters, notably as regards mutual recognition and enforcement of judicial decisions. Direct contacts between competent judicial authorities should be made possible.

All the human rights legal instruments under the justice and home affairs acquis have been ratified by Poland with the exception of Protocol No 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms, which lays down the ne bis in idem principle.

Conclusion

In its 1997 Opinion the Commission noted that Poland was facing significant challenges in the JHA field, particularly concerning drugs, border management, migration and transnational crime. However, it went on to say that, provided that continuing efforts were made to improve the situation, Poland could be able to meet the requirements of the justice and home affairs acquis (present and future) in the next few years.

Since the Opinion very significant progress has been achieved in the area of legislative alignment with most of the necessary legal approximation with the relevant acquis having been achieved. There has also been progress in putting in place the necessary administrative capacity although not to the same extent and further work is required in each of the areas which fall under this chapter.

Negotiations on this chapter have been provisionally closed. Poland has not requested any transition periods under this chapter in the negotiations. Poland is meeting the majority of the commitments it has made in the negotiations in this field. There have been some delays in meeting the time-tables for introducing visas to third countries and in the case of the Russian Federation, Belarus and FYROM, these timetables have been revised.

In order to be ready for membership, Poland should focus further efforts on completing legislative alignment (in particular on money laundering and visa policy) and in particular on ensuring that the necessary administrative capacity is in place to implement the acquis in each of the specific areas which fall within the scope of the Justice and Home Affairs chapter. Aside from the Schengen action plan, a number of specific implementing plans, including the new anti-corruption strategy, the national plan for countering drug addiction, and the anti-crime programme have been developed. Their full and timely implementation would do much to advance the situation and address the issues covered in this chapter.

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