UN Special Rapporteur calls on Turkey to guarantee a fair process for Judge Murat Arslan

Mr. Diego Garcia-Sayàn called the authorities in Turkey to guarantee a fair appeals process for award-winning senior Judge Murat Arslan, who has been convicted in violation of due process and judicial guarantees.

Special Rapporteur further mentioned the unjust case of Murat Arslan, a former Chair of the Association of Judges and Prosecutors, has been in jail since his arrest on 18 October 2016.

“The conviction of Judge Arslan constitutes a severe and gross attack on the independence of the judiciary in Turkey, and in a democratic state under the rule of law an independent and impartial judiciary is a fundamental guarantee for society as a whole,” said the UN human rights expert.

For the press release of the OHCHR (link).

Avrupa Konseyi Bakanlar Komitesi, “Adli ve idari yargılamalarda elektronik delillere dair kılavuz ilkeleri” yayınlandı

Avrupa Konseyi Bakanlar Komitesi 30 Ocak 2019’da ‘Adli ve idari yargılamalarda elektronik delillere dair kılavuz ilkeleri’ yayınladı.

ByLock yargılamalarına dair önemli ilkeler içeren eden Kılavuz ilkelerini, Erdoğan rejimi tarafından tutuklanan binlerce hukukçunun haklarını savunmak ve seslerini duyurmak için kurulan Arrested Lawyers Initiative (Tutuklu Hukukçular Girişimi) Türkçe’ye tercüme etti.

Tercüme edilen kılavuzda yer alan ve size yardımcı olacağını düşündüğümüz ilkelerin başlıkları şöyle:

  • Uzaktan ifade alma;
  • Elektronik delillerin kullanımı;
  • Delil toplanması, elde edilmesi ve iletimi;
  • İlgililik;
  • Güvenilirlik
  • Depolama ve muhafaza;
  • Arşivleme;
  • Farkındalık oluşturma, gözden geçirme, öğretim ve eğitim.


İŞTE KILAVUZ’UN TÜRKÇE TERCÜMESİ – 30 OCAK 2019

Avrupa Konseyi Bakanlar Komitesi,

Avrupa Konseyi’nin amacının, bilhassa yasal hususlara ilişkin ortak kuralların kabulünü destekleyerek, üye devletler arasında daha sağlam bir birlik oluşturmak olduğunu göz önünde bulundurarak;

Medeni ve idari dava ve işlerde mahkemelere ve yargılama yetkisini haiz diğer yetkili makamlara, hukuku meslek edinmiş kimselere ve bu dava ve işlerin taraflarına elektronik delillerin nasıl ele alınması gerektiğine ilişkin olarak işlevsel bir kılavuz ortaya koymanın gerekliliğini dikkate alarak;

Bu kılavuz ilkelerin üye devletlerin ulusal mevzuatını bağdaştırmaktan ziyade ortak bir çerçeve çizmek amacını taşıdığının bilincinde olarak;

Üye devletlerin yasal sistemlerinde görülen çeşitliliğe saygının bir gereklilik olduğunu telakki ederek;

Üye devletlerin yargı sistemlerini dijitalize etme hususunda gösterdikleri gelişmenin farkında olarak;

Yine de, yargı sistemlerinde elektronik delillerin etkili bir şekilde yönetilebilmeleri önünde yer alan ortak standartların yokluğu, delil toplama süreçlerinin çeşitliliği ve karmaşıklığı gibi engellerin farkında olduklarını bildirerek;

Yargı sistemleri içerisinde ve mahkeme sürecinde elektronik delillerin kullanımının kolaylaştırılmasına duyulan ihtiyacın altını çizerek;

Üye devletlerin günümüzde elektronik delil kullanımında ortaya çıkan aksaklıkları incelemelerine ve yeni elektronik delil prensiplerinin ve pratiklerinin ortaya konabileceği veya var olan prensip ve pratiklerin iyileştirilebileceği alanların tespitini yapmalarına ilişkin bir gerekliliğin varlığının bilincinde olarak;

Bu kılavuz ilkelerin amacının mevzuatta ve uygulamada görülen aksaklıklara yönelik elverişli çözümler sağlamak olduğunu belirterek;

Üye devletlere, medeni ve idari dava ve işlerde elektronik delillerin kullanımına ilişkin olarak ortaya çıkan problemlere cevaben üye devletlerin yargı ve diğer uyuşmazlık çözüm mekanizmaları nezdinde yürüttükleri uyum çalışmalarında onlara yardımcı olmak amacıyla ve bu çalışmalarda etkili bir araç olur düşüncesiyle aşağıda yer alan kılavuz ilkeleri kabul eder; ve üye devletleri söz konusu kılavuz ilkelerin uygulanması amacına yönelik olarak bu ilkelerin elektronik delillerden sorumlu olan, veya bu delillerin ele alınmasında görevli bulunan, şahısların aracılığıyla olabildiğince geniş bir kitleye yaymaya davet eder.

Amaç ve kapsam

Kılavuz ilkelerin konusunu;

  • uzaktan ifade alma;
  • elektronik delillerin kullanımı;
  • delil toplanması, elde edilmesi ve iletimi;
  • ilgililik;
  • güvenilirlik
  • depolama ve muhafaza;
  • arşivleme;
  • farkındalık oluşturma, gözden geçirme, öğretim ve eğitim;

hususları oluşturmaktadır.

Kılavuz ilkeler, hiçbir şekilde bu ilkeler belli tür elektronik delillerin kanıt gücünü haiz olduklarına dair bir kabul getiriyor şeklinde yorumlanmamalı ve yalnızca ulusal mevzuatla çakışmadıkları sürece uygulanmalıdırlar.

Kılavuz ilkeler yargı sistemlerinde ve mahkeme uygulamalarında elektronik delillerin kullanımını ve yönetimini kolaylaştırmayı hedeflemektedir.

Tanımlar

Bu kılavuz ilkelerin amacı doğrultusunda:

  • Elektronik delil:“Elektronik delil” işleyişi bir yazılım programına ya da bir bilgisayar sisteminde veya ağında tutulan veya bu sistem veya ağ üzerinden aktarılan veriye bağlı olan herhangi bir cihaz tarafından oluşturulan veya bu cihaz içerisinde yer alan veriden elde edilmiş her türlü delil anlamına gelmektedir.
  • Metadata:“Metadata” diğer elektronik verilere ilişkin olup delilin kimliğini, kaynağını veya tarihini belirleyebilmesinin yanında ilgili tarihlerin ve zamanların tespitini sağlayabilme potansiyeline sahip elektronik bilgi anlamına gelmektedir.
  • Güven hizmeti: Aşağıda yer alan unsurları içeren elektronik hizmet:
  1. Elektronik imzaların, elektronik mühürlerin ya da elektronik zaman damgalarının oluşturulması, doğrulanması ve geçerli kılınmaları; kayıtlı elektronik dağıtım hizmetleri ve bu hizmetlere ilişkin sertifikalar; ya da
  2. İnternet sitesi doğrulama hizmetleri için sertifika oluşturulması, bu sertifikaların doğrulanması ve geçerli kılınmaları; ya da
  3. Elektronik imzaların, mühürlerin muhafazası veya bu hizmetlere ilişkin sertifikalar
  •  Mahkeme: Yargılama yapma yetkisiyle donatılmış ve bu yetkinin icrasında elektronik delillerden faydalanan her türlü yetkili makam.

Temel prensipler

Elektronik delillerin sahip oldukları potansiyel ispat gücü ulusal mevzuat doğrultusunda mahkemeler tarafından karara bağlanır.

Elektronik deliller; bilhassa delillerin kabul edilebilirliğine, gerçekliğine, kesinliğine ve bütünlüğüne ilişkin hususlar açısından diğer delillerle aynı şekilde değerlendirilmelidir.

Elektronik deliller tarafları dezavantajlı bir konuma sokacak ya da taraflardan herhangi birine hâksiz bir avantaj sağlayacak şekilde ele alınmamalıdır.

Kılavuz ilkeler

Uzaktan ifade alma

  1. İfade alma, delilin doğasına aykırı olmamak koşuluyla, teknik araçlar kullanılarak uzaktan yapılabilir.
  2. Mahkemeler, ifade almanın uzaktan yapılıp yapılmayacağına karar verirken bilhassa aşağıda yer alan faktörleri göz önünde bulundurmalıdırlar:
  • Delilin önemi
  • İfadesi alınacak kişinin statüsü
  • Delilin aktarılacağı video bağlantısının güvenliği ve bütünlüğü
  • İfadesi alınacak kişinin mahkeme huzuruna getirilmesinin yol açacağı masraflar ve zorluklar.
  1. Uzaktan ifade almanın: a) duruşmada hazır bulunan kişilerin, duruşmanın halka açık yapıldığı durumlarda halkın, göreceği ve duyacağı şekilde ve, b) ifadesi alınacak kişide, ifadesinin etkili ve adil bir şekilde alındığına ilişkin bir şüphe oluşmasının önüne geçmek için gerekli olduğu ölçüde bu kişinin duruşmayı izleyebileceği ve duyabileceği şekilde, yapılması gerekmektedir.
  2. Uzaktan ifade alma süreci ve bu süreçte kullanılan teknolojiler bu delilin kabul edilebilirliğine ve ilgili kişilerin mahkeme tarafından kimlik tespitlerinin yapılmasına engel oluşturmamalıdırlar.
  3. İfade almanın hususi veya halka açık bir bağlantı kullanılarak yapılmasından bağımsız olarak video konferansının kalitesi sağlanmalı ve ifadenin üçüncü şahıslar tarafından dinlenmesinin önüne geçmek adına video sinyali şifrelenmelidir.

Elektronik delillerin kullanımı

  1. Mahkemeler elektronik delilleri reddetmemeli ve yalnızca elektronik bir formatta toplandıkları ve/veya sunuldukları için yasal olarak haiz olmaları gereken etkiden bu delilleri yoksun bırakmamalıdırlar.
  2. Kural olarak mahkemeler, yalnızca gelişmiş, kaliteli ve benzeri şekilde güvence altına alınmış bir elektronik imzanın yokluğunu gerekçe göstererek elektronik delilleri yasal olarak haiz olmaları gereken etkiden yoksun bırakmamalıdırlar.
  3. Mahkemeler metadatanın sahip olduğu ispat değerinin ve bu verileri kullanmamanın yol açacağı potansiyel sonuçların farkında olmalıdırlar.
  4. Taraflar elektronik delilleri, delilin çıktısı alınmış halini de tedarik etmek zorunda olmadan, orijinal elektronik formatında ibraz edebilmeliler.

Delillerin toplanması, elde edilmesi ve iletimi

  1. Elektronik delil makul ve güvenilir bir metot izlenerek toplanmalı ve bu delillerin mahkemelere ibrazı güven hizmetleri gibi güvenilir hizmetler kullanılarak sağlanmalıdır.
  2. Elektronik delillerin elektronik olmayan delillere nazaran sahip olduğu daha yüksek tahrip olma veya kaybolma riski göz önüne alındığında, üye devletler elektronik delillerin güvenilir bir şekilde elde edilmesi ve toplanmasına ilişkin olarak özel prosedürler geliştirmelidirler.
  3. Mahkemeler, elektronik delillerin yabancı ülke sınırları içerisinde elde edilmesi ve toplanmasına bağlı olarak ortaya çıkması muhtemel sorunların, sınır aşan dosyalardakiler de dahil olmak üzere, farkında olmalıdırlar.
  4. Mahkemeler sınır aşan delil toplama durumlarında birbirleriyle işbirliği içerisinde olmalıdırlar. Delil toplanmasına dair kendisine talepte bulunulan mahkeme, talepte bulunan mahkemeyi delilin hangi koşullara bağlı olarak toplanabileceği, bu bağlamda hangi kısıtlamaların da söz konusu olduğu hususunda bilgilendirmelidir.
  5. Elektronik deliller, delillerin başka mahkemelere iletilmesini kolaylaştıracak şekilde toplanmalı, düzenlenmeli ve ele alınmalıdır.
  6. Dava sürecinin daha etkin bir şekilde işleyebilmesine yardımcı olmak adına elektronik delillerin iletiminin elektronik araçlar vasıtasıyla yapılması teşvik edilmelidir.
  7. Elektronik delillerin iletiminde kullanılan sistemler ve cihazlar bu delillerin bütünlüğünü muhafaza edebilecek nitelikte olmalıdırlar.

İlgililik

  1. Mahkemeler, bilhassa elektronik delillerin gereğinden fazla ve şüpheli temininin ve bu delillere gereğinden fazla ve şüphe uyandıracak şekilde talebin oluşmasının önüne geçmek amacıyla elektronik delillerin yönetiminde aktif rol almalıdırlar.
  2. Mahkemeler, özellikle delillerin ispat gücüne ilişkin olarak ortaya atılan veya elektronik delillerle oynandığına dair bir iddianın varlığı halinde elektronik delillerin uzmanlar tarafından incelenmesini isteyebilir. Bu uzmanların ilgili konu dahilinde yeterli tecrübeye sahip olup olmadıkları mahkemeler tarafından karara bağlanmalıdır.

Güvenilirlik

  1. Delillerin güvenilirliğine ilişkin olarak mahkemeler, elektronik verilerin kaynağına ve gerçekliğine dair ilgili her türlü hususu göz önünde bulundurmalıdır.
  2. Mahkemeler güven hizmetlerinin elektronik delillere güvenin kurulması noktasında sahip oldukları değerin farkında olmalıdırlar.
  3. Ulusal yargı sisteminin izin verdiği ölçüde ve mahkemenin bu konudaki takdir yetkisini bertaraf etmeden; elektronik veriler, bu verilerin doğruluğuna ilişkin olarak taraflardan biri itiraz etmediği taktirde, delil olarak kabul edilmelidirler.
  4. Ulusal yargı sisteminin izin verdiği ölçüde ve mahkemenin bu konudaki takdir yetkisini bertaraf etmeden; imzalayan şahsın kimliğinin doğrulandığı ve verinin bütünlüğünün güvence altına alındığı durumlarda, aksine ilişkin olarak makul şüphelerin ortaya çıkmaması halinde veya bu tarz şüphelerin ortaya çıkmasına kadar elektronik verilerin güvenilir olduğu varsayılmalıdır.
  5. Uygulanacak hukukun savunmasız kişi kategorisine giren bireyler için özel koruma getirdiği durumlarda söz konusu hukuk bu kılavuz ilkeler nazarında önceliğe sahiptir.
  6. Ulusal yargı sisteminin izin verdiği ölçüde, bir kamu otoritesinin taraflardan bağımsız olarak bir elektronik delili bir yerden bir yere aktarması durumunda, söz konusu delilin içeriği aksi ispat edilene kadar kesinleşmiş kabul edilir.

Depolama ve muhafaza

  1. Elektronik deliller bunların okunabilirliğinin, ulaşılabilirliğinin, bütünlüğünün, gerçekliğinin, güvenilirliğinin ve gerekli olduğu yerde gizliliğinin ve delillerin ilgili bulundukları şahısların özel hayatlarının gizliliğinin muhafaza edilmesini sağlayacak şekilde saklanmalıdır.
  2. Elektronik deliller bunların hangi bağlamda oluşturulduğunun açık bir şekilde ortaya konmasını sağlamak adına standart hale getirilmiş metadatalarla birlikte muhafaza edilmelidir.
  3. Bilgi teknolojilerinde yaşanan gelişmeleri de göz önüne alarak, muhafaza altında bulunan elektronik delillerin zaman içerisinde okunabilirliklerini ve ulaşılabilirliklerini kaybetmelerinin önüne geçilmelidir.

Arşivleme

  1. Mahkemeler elektronik delilleri ulusal hukukun öngördüğü şekilde arşivlemelidirler. Elektronik arşivler bütün güvenlik gerekliliklerini sağlar nitelikte olmalı ve verilerin bütünlüğünü, gerçekliğini, gizliliğini, kalitesini garanti altına almalarının yanı sıra özel hayatın gizliliğine saygı prensibini de garanti etmelidirler.
  2. Elektronik delillerin arşivlenmesi işlemi nitelikli uzmanlar tarafından yürütülmelidir.
  3. Veriler elektronik delillere erişimi muhafaza etmek için gerekli olduğu taktirde yeni bir depo medyasına taşınmalıdır. 

Farkındalık oluşturma, gözden geçirme, öğretim ve eğitim

  1. Üye devletler elektronik delillerin medeni ve idari iş ve davalardaki faydalarına ve değerine ilişkin farkındalığı artırmaya yönelik çalışmalarda bulunmalıdırlar.
  2. Üye devletler elektronik delillere ilişkin olarak var olan teknik standartları denetim altında tutmalıdırlar.
  3. Mesleklerinin gereği olarak elektronik delillerle uğraşan her şahsa, bu delillerin nasıl ele alınması gerektiğine ilişkin gerekli disiplinler arası öğretime erişim imkânı sağlanmalıdır.
  4. Hakimler ve hukuku meslek edinmiş kişiler elektronik delillerin ulaşılabilirliğine ve değerine etki edebilecek bilgi teknolojilerine dair gelişmelerin farkında olmalıdırlar.
  5. Hukuk eğitiminin kapsamına elektronik cihazlara ilişkin modüller eklenmelidir.


Kaynaklar:
– https://www.coe.int/en/web/portal/-/committee-of-ministers-adopts-guidelines-on-electronic-evidence-in-civil-and-administrative-proceedin-1

– https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680902e0c

Guidelines of the Committee of Ministers of the Council of Europe on electronic evidence in civil and administrative proceedings

(Adopted by the Committee of Ministers on 30 January 2019,
at the 1335th meeting of the Ministers’ Deputies)

The Committee of Ministers,

Considering that the aim of the Council of Europe is to achieve a greater unity between the member States, in particular by promoting the adoption of common rules in legal matters;

Considering the necessity of providing practical guidance for the handling of electronic evidence in civil and administrative proceedings to courts and other competent authorities with adjudicative functions; professionals, including legal practitioners; and parties to proceedings;



Considering that these guidelines seek to provide a common framework rather than a harmonisation of the national legislation of the member States;

Considering the need to respect the diversity in the legal systems of the member States;

Acknowledging the progress made in the member States towards the digitisation of their justice systems;

Noting, nonetheless, obstacles to the effective management of electronic evidence within justice systems, such as the lack of common standards and the diversity and complexity of evidence-taking procedures;

Highlighting the need to facilitate the use of electronic evidence within legal systems and in court practices;

Recognising the need for member States to examine current deficiencies in the use of electronic evidence and to identify the areas where electronic evidence principles and practices could be introduced or improved;

Noting that the aim of these guidelines is to provide practical solutions to the existing deficiencies in law and practice,

Adopts the following guidelines to serve as a practical tool for the member States, to assist them in adapting the operation of their judicial and other dispute-resolution mechanisms to address issues arising in relation to electronic evidence in civil and administrative proceedings, and invites them to disseminate these guidelines widely with a view to their implementation by those responsible for, or otherwise handling, electronic evidence.

Purpose and scope

The guidelines deal with:

–                    oral evidence taken by a remote link;

–                    use of electronic evidence;

–                    collection, seizure and transmission of evidence;

–                    relevance;

–                    reliability;

–                    storage and preservation;

–                    archiving;

–                    awareness-raising, review, training and education.

The guidelines are not to be interpreted as prescribing a specific probative value for certain types of electronic evidence and are to be applied only insofar as they are not in conflict with national legislation.

The guidelines aim to facilitate the use and management of electronic evidence within legal systems and in court practices.

Definitions

For the purposes of these guidelines:

Electronic evidence

“Electronic evidence” means any evidence derived from data contained in or produced by any device, the functioning of which depends on a software program or data stored on or transmitted over a computer system or network.

Metadata

“Metadata” refers to electronic information about other electronic data, which may reveal the identification, origin or history of the evidence, as well as relevant dates and times.

Trust service

“Trust service” means an electronic service which consists of:

a.     the creation, verification and validation of electronic signatures, electronic seals or electronic time stamps, electronic registered delivery services and certificates related to those services; or

b.     the creation, verification and validation of certificates for website authentication; or

c.     the preservation of electronic signatures, seals or certificates related to those services.

Court

The term “court” includes any competent authority with adjudicative functions in the performance of which it handles electronic evidence.

Fundamental principles

It is for courts to decide on the potential probative value of electronic evidence in accordance with national law.

Electronic evidence should be evaluated in the same way as other types of evidence, in particular regarding its admissibility, authenticity, accuracy and integrity.

The treatment of electronic evidence should not be disadvantageous to the parties or give unfair advantage to one of them.

Guidelines

Oral evidence taken by remote link

1.            Oral evidence can be taken remotely, using technical devices, if the nature of the evidence so permits.

2.            When deciding whether oral evidence can be taken remotely, the courts should consider, in particular, the following factors:

–           the significance of the evidence;

–           the status of the person giving evidence;

–           the security and integrity of the video link through which the evidence is to be transmitted;

–           costs and difficulties of bringing the relevant person to court.

3.            When taking evidence remotely, it is necessary to ensure that:

a.    the transmission of the oral evidence can be seen and heard by those involved in the proceedings and by members of the public where the proceedings are held in public; and

b.    the person being heard from a remote location is able to see and hear the proceedings to the extent necessary to ensure that they are conducted fairly and effectively.

4.            The procedure and technologies applied to the taking of evidence from a remote location should not compromise the admissibility of such evidence and the ability of the court to establish the identity of the persons concerned.

5.            Irrespective of whether evidence is transmitted via a private or a public connection, the quality of the videoconference should be ensured and the video signal encrypted to protect against interception.

Use of electronic evidence

6.            Courts should not refuse electronic evidence and should not deny its legal effect only because it is collected and/or submitted in an electronic form.

7.            In principle, courts should not deny the legal effect of electronic evidence only because it lacks an advanced, qualified or similarly secured electronic signature.

8.            Courts should be aware of the probative value of metadata and of the potential consequences of not using it.

9.            Parties should be permitted to submit electronic evidence in its original electronic format, without the need to supply printouts.

Collection, seizure and transmission

10.          Electronic evidence should be collected in an appropriate and secure manner, and submitted to the courts using reliable services, such as trust services.

11.          Having regard to the higher risk of the potential destruction or loss of electronic evidence compared to non-electronic evidence, member States should establish procedures for the secure seizure and collection of electronic evidence.

12.          Courts should be aware of the specific issues that arise when dealing with the seizure and collection of electronic evidence abroad, including in cross-border cases.

13.          Courts should co-operate in the cross-border taking of evidence. The court receiving the request should inform the requesting court of all the conditions, including restrictions, under which evidence can be taken by the requested court.

14.          Electronic evidence should be collected, structured and managed in a manner that facilitates its transmission to other courts, in particular to an appellate court.

15.          Transmission of electronic evidence by electronic means should be encouraged and facilitated in order to improve efficiency in court proceedings.

16.          Systems and devices used for transmitting electronic evidence should be capable of maintaining its integrity.

Relevance

17.          Courts should engage in the active management of electronic evidence in order, in particular, to avoid excessive or speculative provision of, or demand for, electronic evidence.

18.          Courts may require the analysis of electronic evidence by experts, especially when complex evidentiary issues are raised or where manipulation of electronic evidence is alleged. Courts should decide whether such persons have sufficient expertise in the matter.

Reliability

19.          As regards reliability, courts should consider all relevant factors concerning the source and authenticity of the electronic evidence.

20.          Courts should be aware of the value of trust services in establishing the reliability of electronic evidence.

21.          As far as a national legal system permits, and subject to the court’s discretion, electronic data should be accepted as evidence unless the authenticity of such data is challenged by one of the parties.

22.          As far as a national legal system permits, and subject to the court’s discretion, the reliability of the electronic data should be presumed, provided that the identity of the signatory can be validated and the integrity of the data secured, unless and until there are reasonable doubts to the contrary.

23.          Where applicable law provides special protection for categories of vulnerable persons that law should have precedence over these guidelines.

24.          As far as a national legal system so provides, where a public authority transmits electronic evidence independently of the parties, such evidence is conclusive as to its content, unless and until proved to the contrary.

Storage and preservation

25.          Electronic evidence should be stored in a manner that preserves readability, accessibility, integrity, authenticity, reliability and, where applicable, confidentiality and privacy.

26.          Electronic evidence should be stored with standardised metadata so that the context of its creation is clear.

27.          The readability and accessibility of stored electronic evidence should be guaranteed over time, taking into account the evolution of information technology.

Archiving

28.          Courts should archive electronic evidence in accordance with national law. Electronic archives should meet all safety requirements and guarantee the integrity, authenticity, confidentiality and quality of the data as well as respect for privacy.

29.          The archiving of electronic evidence should be carried out by qualified specialists.

30.          Data should be migrated to new storage media when necessary in order to preserve accessibility to electronic evidence.

Awareness-raising, review, training and education

31.          Member States should promote awareness of the benefits and value of electronic evidence in civil and administrative proceedings.

32.          Member States should keep technical standards related to electronic evidence under review.

33.          All professionals dealing with electronic evidence should have access to the necessary interdisciplinary training on how to handle such evidence.

34.          Judges and legal practitioners should be aware of the evolution of information technologies which may affect the availability and value of electronic evidence.

35.          Legal education should include modules on electronic evidence.



Sources:
– https://www.coe.int/en/web/portal/-/committee-of-ministers-adopts-guidelines-on-electronic-evidence-in-civil-and-administrative-proceedin-1

– https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680902e0c

HRD has issued a new Report on Bylock which is used as a tool by Erdogan Regime to incriminate people

ByLock is not an application that is used in the so-called coup attempt on 15th July 2016 as the Erdogan Regime and the media claims. Because this application was closed five months before the coup attempt, in March 2016.

How did a digital communication application, become a material of for the Erdogan regime the justification for arresting more than 60 thousand people in Turkey?

President Erdogan, who claimed to have learned the so-called coup attempt on 15th July 2016 (15/7) from his brother-in-law during the attempt, declared the supporters of Gülen movement as the perpetrators of the coup, whom he considered being responsible for the 17th /25th December 2013 Corruption and Bribery operations.

The “Erdogan Regime” dismissed approximately four thousand judges and prosecutors of their duties on 17th July 2016, right afterwards of the coup attempt, with the claim of being coup plotters and arrested many of them in order to establish his own judicial system.

Later on, he had thousands of people arrested. Among them journalists, teachers, doctors, lawyers and businessmen. The common characteristic of these people was being opposed to the Erdogan Regime.

Those arrests are generally justified by reasons such as writing critical columns, depositing money to a legal bank, sending their children to the schools allegedly having ties to Gülen movement and being members to legal unions and foundations.

Erdogan and his judiciary, who knew that these claims are not enough to justify the arrests, needed a new excuse to strengthen the claims why they have arrested the opposition.

Within this need, they made the perception that the “ByLock” application have been used in 15th of July Coup Attempt only by Gülen supporters. They made people believe that the ByLock application is classified, incognito and only known by the members of Hizmet Movement, installed differently to the devices and encrypted.

After they made this perception accepted by the society, the lists of names which were prepared by  unknown people in unknown dates from the National Intelligence Agency (MIT), which has no authority and function as a law enforcement agency, were sent to the units of judiciary and then accepted as concrete evidence for the alleged crimes of being a member to a terrorist organization by judiciary without questioning.

ByLock application is not an application that is used in the so-called coup attempt as the Erdogan Regime and the media claims. Because this application was closed five months before the coup attempt, in March 2016.

ByLock application was not an application that only had been used by Hizmet Movement members secretly, because it was an application that was downloaded more than 600.000 times from Google Play Store and App Store worldwide. The Bylock application, which is presented as an enigmatic, encrypted application was even simpler than the applications such as WhatsApp, Viber, Line and Tango.

But as a result of this perception, approximately 17.000 women along with their 668 babies were arrested in Turkey with the accusations of using ByLock. The number of total arrests is around 60 thousand and it is increasing. The members of judiciary who questioned this process with suspicion are either expelled or dismissed from their duties. Therefore, it was seen as a necessity to prepare this Report, aiming to show that all the announcements and procedure of judiciary and National Intelligence Agency, under the control of the Erdogan Regime, regarding ByLock are in fact to create a groundless perception.

World Justice Project’s research team has issued Rule of Law Index 2017- 2018

The WJP Rule of Law Index measures rule of law adherence in 113 countries and jurisdictions worldwide based on more than 110,000 household and 3,000 expert surveys. Featuring primary data, the WJP Rule of Law Index measures countries’ rule of law performance across eight factors: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.

Download report (PDF) or
Explore the interactive data 

“The Platform for an Independent Judiciary in Turkey” has drafted a letter about Turkey

“The Platform for an Independent Judiciary in Turkey” has drafted a letter about Turkey

On the occasion of the Human Rights Day 2018, the Platform for an Independent Judiciary in Turkey , composed of the four major European associations of judges ( The Association of European Administrative Judges (AEAJ) , The European Association of Judges , Judges for Judges and The “Magistrats Europeens pour la Democratie et les Libertes” (MEDEL) drafted a letter about Turkey ,inviting all governmental leaders and parliaments to support Turkey to re-install the rule of law and to follow its obligation to respect fundamental human rights.

Read with source: https://www.iaj-uim.org/news/human-rights-day-2018-letter-of-the-platform-for-an-independent-judiciary-in-turkey/

10 December 2018, Press Release regarding human rights violations in Turkey

With a press release in front of European Court of Human Rights, HRD members and volunteers drew attention to the human rights violations in Turkey.
Human Rights Defenders invited the European Court of Human Rights to take an effective initiative.

THE PRESS STATEMENT OF “HUMAN RIGHTS DEFENDERS” IN HUMAN RIGHTS DAY, 10TH DECEMBER 2018

70 years ago, on the 10th of December 1948, “The Universal Declaration of Human Rights” was adopted by the UN General Assembly. Both, the “Universal Declaration of Human Rights” and the “European Convention on Human Rights” envisages and embraces the basic and fundamental rights and freedoms of people, which should be under the protection of the States and above all of them, of the United Nations.

As we observe the 70th Anniversary of this significant and historical Day, we unfortunately do witness that this protection is not granted to everyone, and those who should serve this goal are acting inconsequently. The European Court of Human Rights (ECHR) which we apply to, does not fulfill its function in accordance with its purpose of establishment. The Court did not develop court practices within its range of authority to prevent human rights’ violations and ignores millions of “human rights violations” which can even be seen with bare eyes.

In Turkey, human righs violations today became massive, and each day these violations become irretrievable. The Turkish Government, or rather the notorious “Erdogan Regime” as it is now, has become a despotic rule, comparing to the much promising State which it was a half a decade ago, had strong relations with European Union. The Turkish Government, turned its back on reforms related to human rights and further democratization efforts starting from December 2013 swiftly and became a literal dictatorship after 15 July 2016. Right now, it is impossible to talk about even the very existence of fundamental rights and freedoms. Everything is at the mercy of one person, and the basic human rights are unfortunately ignored.

These human rights violations in Turkey are reflected in several international reports such as “2017 report of Human Rights Watch”, “2017 report of Office of The United Nations High Commissioner For Human Rights”, “the 2018 report of Amnesty International”, “the 2018 report of the Platform of Peace and Justice regarding the children rights’ violations in Turkey”, “the 2018 report of European Parliament”.

Although, that in those international reports, as well as the some verdicts such as the verdict of the local court in England and thousands of petitions written by the victims of the Erdogan Regime it is expressed that THERE IS NO SUCH RIGHT AS FAIR TRIAL, the ECHR ignores the facts and turns a blind eye on the human right violations in Turkey.

So, what exactly is happening in Turkey in terms of human rights violations? In Turkey, the rights which are ensured by the Universal Declaration of Human Rights are violated. Such as:

1- In Turkey, the most fundamental right of people, “the Right to live” is taken away,

  • -In Eastern and South Eastern provinces, tens of villages and towns are destroyed, tens of thousands of Kurdish people were forced to leave their homes
  • -Trustees are assigned to the provincial offices that are affiliated to the Ruling Party to ignore the will of the local people
  • -In prisons, thousands of convicts and prisoners’ right to live is taken away, by systematic tortures and depriving their rights of healthcare
  • -The people of the “Hizmet” movement and any other civil society organizations which seem to be opposing are targeted by hate speeches and witch hunts, therefore, their right to live is taken away from them.
  • -Tens of politicians of the opposition, hundreds of journalists are kept in prisons because of their political believes.

2- The “Right to Work” is stolen.

  • -With decree-laws, more than 130.000 people (whose victimhood is explained detailly in the 2018 report of Amnesty International) are dismissed from public duties, of them 33.500 teachers, 7.000 health workers, 31.500 security workers, 6.000 academics, 39.000 public servants, 13.000 soldiers.
  • -More than 100.000 employees from the companies (schools, universities, study houses, hospitals, foundations, federations, unions, media institutions) which are closed by confiscation or assigning trustees are dismissed from their jobs. They are prevented to find other jobs in different places by the State further. They are left to a “civil death”.
  • -The workers are working under extreme and worst conditions (e.g. the construction of Istanbul airport) and unfortunately many workers are facing death every day. Child workers are being employed and current unions cannot say any critic.

3- In Turkey, the Right of Property of people is arbitrarily taken away.

  • -In Eastern and Southeastern provinces, the houses and lands which were evacuated because of the suspect of terror are confiscated and people were prevented to return to their homes
  • -All the assets of the institutions and persons of Hizmet movement are usurped and made available to the supporters of the regime.
  • -With arbitrary decisions, the environment is being damaged, and the ecologic balance is destroyed, the lands of people are confiscated with low costs (e.g. the project of Kanal Istanbul)

4- The “Right of not being subject to torture” of people is being violated

  • -Torture, which conflicts with human dignity became again a routine in Turkey. All the opposition receives systematic torture. (This situation is indicated clearly in the March 2018 report of the UN Human Rights)
  • -More than half of all journalists who are in prison in all over the world, 259 people, are in Turkish prisons right now. These people are treated as terrorists and tortured.

5- The “Right to assembly and demonstration” is being violated.

  • -Hundreds of NGO’s are closed and their assets confiscated including unions (e.g. AksionIs and Cihansen)
  • -The fundamental right of democracy to demonstrate and meet is cancelled by the governors who became the political tools of the government

6- In Turkey, the “Right to fair trial” is consciously destroyed

  • -4500 prosecutors and judges who constitute one third of all current judges and prosecutors in Turkey are exported from the duty. Nearly all of them are issued arrest warrants
  • -Currently 3500 prosecutors-judges and 1500 lawyers in Turkey are in prisons.
  • -The verdict of ECHR is not applied (e.g. the Selahattin Demirtaş decision of ECHR)
  • -The verdicts of the Constitutional Court are not applied by the local courts (e.g. the decision of the Constitutional Court about journalist Mehmet Altan and Şahin Alpay)
  • -The people who are labeled as “spies, terrorists” are evacuated in few days when states got involved (pastor Brunson, journalist Deniz Yucel etc.) but the convicts who suffer from cancer are not even sent to the any medical treatment.
  • -The judges who are supposed to be neutral and independent do not consider it harmful to announce their political beliefs, which are mostly in line with the ruling Erdagan Regime.
  • -The bill of indictments is not prepared. The people stay in prisons for months but cannot even learn the accusations against them. (Osman Kavala is kept in prison for a year without preparing his bill of indictment)
  • -There are arbitrary long imprisonments. The judges are afraid to evacuate people.
  • -743 babies are kept in prisons along with their mothers.
  • As the reassurance of all fundamental rights and freedoms, the “RIGHT TO FAIR TRIAL” is removed, there is no guarantee for any rights in Turkey now.

Today, the only HOPE against the crimes of hate, discrimination and torture committed by the oppressive regime in Turkey is the existence of law. The notorious “Erdogan Regime” commits crimes against the universal principles of law by its acts of crimes against humanity. It deprived the Republic of Turkey which was loyal to the international agreements it has signed from law and democratic values. This should not be allowed.

The ECHR in Europe, which was established to protect the human rights was an institution that set an example to the world. But the court is criticized by prestigious legal experts and institutions because of the decisions it made and the decisions it didn’t make. This delay of ECHR to decide is expressed in international conferences and meetings often. Letters are sent to the court by renowned law circles and the attitude of the court is examined in universities by being subjects to theses. The ECHR cannot hide behind the excuse of not exhausted domestic remedies anymore. About tens of files which are issued in 2014, processed in all phases and finalized, for which there is no option of domestic remedies now, the court hesitates to decide. Its hesitation to decide in many files in which the human right violations are proved makes the impression as if it negotiated with the “Erdogan regime” in the world. And this strengthens the critics saying that the ECHR stopped being an independent and neutral court and became a political institution. All the reputation of the court gained in years is somehow being destroyed. The ECHR cannot run away from its responsibility regarding what is happening in Turkey and its attitude will definitely remembered in history. We as the volunteers of “Human Rights Defenders” call the ECHR to take responsibility about what is happening in Turkey in accordance with its historical mission and previous acts and to fulfill its duty.

The ECHR SHOULD NOT BECOME PARTNERS IN CRIME of the crimes committed by the “Erdogan Regime”. We as the volunteers of “Human Rights Defenders” warn ECHR and invite them to fulfill their duty on the occasion of “World Human Rights Day”.

“Human Rights Defenders” closely follows the human rights violations in Turkey. It carries the files of the victims to the international authorities such as the ECHR, UN Human Rights Committee and UN Committee against Torture to continue its legal struggle. Even there are sufferings left because of the victimizations, the law will eventually prevail, the ones who sided with law will eventually prevail.

As the volunteers of “Human Rights Defenders”, we would like to arouse attention of the institutions of International Law, the ECHR being first, to the human rights violations in Turkey on the occasion of 10th December World Human Rights Day. We are calling those institutions to duty and asking them to take effective initiatives in order to say STOP to the unlawfulness in Turkey.

Respectfully announced to the public: 10.12.2018

“HRD- HUMAN RIGHTS DEFENDERS”

www.humanrights-ev.com 

UN/WGAD has issued a new assessment on detention, arrest and conviction in Turkey based on the alleged use of the ByLock

Muharrem Gençtürk was an Associate Professor of Commercial Law at Akdeniz University in Antalya. As public employees, both Mr. Gençtürk and his wife were dismissed from their jobs under Statutory Decree No. 672 issued on 1 September 2016, which resulted in the dismissal of around 50,000 people.

Mr. Gençtürk was taken into custody on 29 July 2016. Mr. Gençtürk’s house was reportedly raided by three police officers from the Antalya Police Department at around 5.30 a.m. with the whole family present. The police officers did not allow him to take any clothes or money with him.

Muharrem Gençtürk

Mr. Gençtürk was initially held at Serik Police Station in Antalya for 18 days. During the first five days of his detention he was not allowed to talk to anyone, including his lawyer. When he was finally allowed to meet his lawyer, they could reportedly only speak in the presence of a police officer and in front of a voice recorder.

On 15 August 2016, a prosecutor reportedly interrogated Mr. Gençtürk, and he was released on parole. However, after less than half an hour, he was suddenly taken back into custody, and this time he was arrested by the Antalya Fifth Criminal Court of Peace. Since then, he has been held at Antalya High Security Prison.

Mr. Gençtürk is charged with membership of a terrorist organization under article 314 of the Turkish Criminal Code due to his supposed use of the ByLock application and due to the fact that his children attended schools related to the Gülen organization.

Using Bylock App is within scope of Freedom of Expression:

In fact, it appears to the Working Group that even if Mr. Gençtürk did use the ByLock application, an allegation that he denies, it would have been mere exercise of his right to freedom of expression. To this end, the Working Group notes that freedom of opinion and freedom of expression as expressed in article 19 of the International Covenant on Civil and Political Rights are indispensable conditions for the full development of the person; they are essential for any society, and indeed, constitute the foundation stone for every free and democratic society.

The Working Group concludes that the arrest and detention of Mr. Gençtürk based upon allegedly using Bylock is violation of the Universal Declaration of Human Rights and article 19 of the International Covenant on Civil and Political Rights.

Violation Regarding Right to Defense:

Mr Gencturk was able to see his lawyers only for 20 minutes a week, UN WGAD concludes that weekly meetings of a mere 20 minutes’ duration with lawyer cannot be said to provide an opportunity to adequately prepare for a defence in such a complex case as terrorism charges. The Working Group therefore considers that there has been a serious breach of article 14 (3) (b) of the International Covenant on Civil and Political Rights.

The Working Group also notes that the failure to allow the defence to examine the secret witnesses bears the hallmarks of a serious denial of equality of arms in the proceedings and is in fact a violation of article 14 (3) (e) of the International Covenant on Civil and Political Rights

Violation Regarding Right to Fair Trial:

The Working Group points out that there was a strong appearance of lack of impartiality and independence on the part of the court, as it put questions to Mr. Gençtürk such as “Are you going to say something different from the others?” and the prosecutor reportedly fell asleep during the trial.

The Working Group also notes the submission by the source that in response to the application for release made on behalf of Mr. Gençtürk, the decision delivered by the judge was a copy-and-paste decision with exactly the same decision and reasoning as was delivered to other defendants, with only the names being different. The Government had the opportunity, but has failed, to address this allegation. The Working Group notes that a failure to provide a reasoned judgment in the case of Mr. Gençtürk constitutes a breach of article 14 (5) of the International Covenant on Civil and Political Rights, as it effectively prevents prospective appellants from enjoying the effective exercise of the right to appeal.

Violations within Scope of Category V has been committed, in other saying the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings.

The Working Group renders the following opinion:

  • The deprivation of liberty of Muharrem Gençtürk, being in contravention of articles 8, 10 and 19 of the Universal Declaration of Human Rights and of articles 2 (3), 9 (3), 14, 19 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V
  • The Working Group requests the Government of Turkey to take the steps necessary to remedy the situation of Mr. Gençtürk without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
  • The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Gençtürk immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.
  • The Working Group urges the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Gençtürk and to take appropriate measures against those responsible for the violation of his rights.
  • The Working Group requests the Government to disseminate the present opinion through all available means and as widely as possible.

Mestan Yayman, is a Turkishnational, was a Vice-Governor of the city of Antalya. He was suspended from hisduty as a civil servant on 29 August 2016 and was subsequently dismissed fromhis job under Statutory Decree No. 672, issued on 1 September 2016, under whichabout 50,000 people were dismissed.

Mestan Yayman

On 1 September 2016, he was taken into custody, Mr. Yayman was not allowed to see his attorney for the first five days of his detention. When he was finally allowed to meet her, they could speak only in the presence of a police officer and in front of a voice recorder.

Mr. Yayman was subsequently released on parole, at around 8.30 p.m., however, the following day, on 8 September 2016, Mr. Yayman was taken into custody and was arrested based on statements from one individual.

10 months after his arrest, he was accused of using the ByLock application in December 2014, based on an intelligence report. Mr Yayman was sentenced to seven years and six months. The court noted that Mr. Yayman was included on the Turkish intelligence service’s list of names, the so-called arrest list, but it failed to show the content of his supposed chats on ByLock.

The Working Group notes the failure on behalf of the Government to show how the mere use of such a regular communication application as ByLock by Mr. Yayman constituted an illegal criminal activity. While the Government has argued that the tribunal requested and obtained the record of the accused’s conversations through the Bylock system, it failed to specify how these conversations could have been construed as criminal activity. Noting the widespread reach of the Gülen movement, as documented in the report of the Council of Europe Commissioner for Human Rights, “it would be rare for a Turkish citizen never to have had any contact or dealings with this movement in one way or another”.

Using Bylock App is within scope of Freedom of Expression:

It appears to the Working Group that even if Mr. Yayman did use the ByLock application, an allegation that he denies, it would have merely constituted exercise of his right to freedom of opinion and freedom of expression. Article 19 (2) of the International Covenant on Civil and Political Rights protects all forms of expression and the means of their dissemination, including all forms of audiovisual, electronic and Internet-based modes of expression (para. 12).

Attending religious meeting is within scope of right to freedom of peaceful assembly and association:

In relation to Mr. Yayman’s attendance of the meetings of the Gülen group in 2013, the Working Group once again observes the failure on behalf of the Government to specify how mere attendance at peaceful and, at that time, legitimate meetings breached the right to freedom of peaceful assembly and association and was contrary to articles 21 and 22 of the International Covenant on Civil and Political Rights The Working Group therefore concludes that the arrest and detention of Mr. Yayman resulted from his exercise of the rights guaranteed under articles 19, 21 and 22 of the Covenant, falling under category II.

Request for Independent Expert Report was denied and The Government did not address these allegations:

The Working Group notes the allegation by the source that during Mr. Yayman’s trial, the judge denied his request for another expert statement as to whether the ByLock application was found on his telephone. The judge also allegedly denied witnesses on behalf of Mr. Yayman the right to be heard. The Government did not address these allegations directly, although it had the opportunity to do so.

The Right to Legal Counsel was violated:

The Working Group notes that prior to the trial proceedings, Mr. Yayman was denied the possibility to meet with his lawyer in private, as a guard with a tape recorder was always present during those meetings. In this respect, the Working Group notes that, as indicated by the Human Rights Committee in its general comment No. 32, the right to communicate with counsel, as enshrined in article 14 (3) (b) of the International Covenant on Civil and Political Rights, entails the requirement that legal counsels should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications (para. 34). That right was denied to Mr. Yayman. Moreover, the meetings with his lawyer were restricted to a mere 20 minutes, a time period so short that it cannot be said to satisfy the requirements of article 14 (3) (b). In addition, once the trial proceedings commenced, Mr. Yayman was prevented from speaking to his lawyer before both trial hearings, which is a further violation of article 14 (3) (b) of the International Covenant on Civil and Political Rights

The Working Group also recalls that, as the Human Rights Committee stated in its general comment No. 32, article 14 (3) (e) of the International Covenant on Civil and Political Rights provides for the right to have witnesses admitted that are relevant for the defence and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings (para. 39). The Working Group thus considers that there have been serious prima facie breaches of Mr. Yayman’s rights under article 14 (3) (e) of the Covenant as well.

The Right to Fair Trial was violated:

In addition, the Working Group observes that the trial judge made requests for the defence to keep defence short and that the court heard the testimony from a key witness in the absence of both Mr. Yayman and his lawyer. The Working Group especially notes that the Government has failed to provide any reasons as to why the key witness was heard without the presence of Mr. Yayman and his lawyer. This is a further serious denial of Mr. Yayman’s rights under article14 (3) (e) of the International Covenant on Civil and Political Rights

The Working Group therefore concludes that there has been partial non-observance of the international norms relating to the right to a fair trial in the case of Mr. Yayman, as he was denied the right to adequate time and facilities to prepare for his defence and was prevented from presenting evidence and examining witnesses on his behalf. The Working Group finds that this partial non-observance was of such gravity as to give his deprivation of liberty an arbitrary character (category III).

Violations within Scope of Category V has been committed, in other saying  the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings.

In all those cases, the Working Group has found the detention of the individuals concerned to be arbitrary and it thus appears to the Working Group that a pattern is emerging whereby those who have been linked to the group are being targeted, despite never having been active members of the group or supporters of its criminal activities. The Working Group therefore considers that the detention of Mr. Yayman was arbitrary since it constitutes discrimination on the basis of political or other opinion or status and falls under category V.

The Working Group renders the following opinion:

  • Thedeprivation of liberty of Mestan Yayman, being in contravention of articles 3,9, 10, 19 and 20 of the Universal Declaration of Human Rights and of articles9, 14, 19, 21, 22 and 26 of the International Covenant on Civil and PoliticalRights, is arbitrary and falls within categories I, II, III and V.
  • TheWorking Group requests the Government of Turkey to take the steps necessary toremedy the situation of Mr. Yayman without delay and bring it into conformitywith the relevant international norms, including those set out in the UniversalDeclaration of Human Rights and the International Covenant on Civil andPolitical Rights.
  • TheWorking Group considers that, taking into account all the circumstances of thecase, the appropriate remedy would be to release Mr. Yayman immediately andaccord him an enforceable right to compensation and other reparations, inaccordance with international law.
  • TheWorking Group urges the Government to ensure a full and independentinvestigation of the circumstances surrounding the arbitrary deprivation ofliberty of Mr. Yayman and to take appropriate measures against thoseresponsible for the violation of his rights.
  • The Working Grouprequests the Government to disseminate the present opinion through allavailable means and as widely as possible.

Advance edited version (PDF)

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