Committee on the Rights of the Child
31 January 2020
The Committee on the Rights of the Child today concluded its consideration of the combined fifth and sixth periodic report of Austria on the implementation of the Convention on the Rights of the Child. In the dialogue, Committee Experts welcomed the withdrawal of the reservations to the Convention and the lowering of the voting age to 16. They then asked about the “headdress ban”, the rights of asylum-seeking children, and hidden discrimination against vulnerable groups of children, among other issues.
A Committee Expert said Austria had instituted a “headdress ban” in schools, which prohibited children aged 6 to 10 from wearing religious clothing that covered the head. However, Jewish kippah and Sikh turban being exempted from the ban, the ban was clearly targeting Muslim girls. The Committee was concerned about the discriminatory nature of this measure and was worried that it would push Muslim girls into private religious schools.
The delegation said the ban on certain clothes in school was hotly debated. The wearing of head covering garments in kindergartens was prohibited, and it was also banned in primary schools up to the age of 10. The extension of the ban up to the age of 14 was in the new Government programme. The wording of the ban did not refer to any specific religion but in practice it was clearly directed at Muslims. Since this decree had been adopted, only eight such cases had been registered and all had been resolved in discussions between the teachers, the school administration and the parents. A complaint had been lodged in the Constitutional Court, which would decide if the relevant paragraph in the Education Law was constitutional or not. The Constitutional Court’s decision would clearly define the future of the ban.
Committee Experts said that while Austria was taking measures to combat racist and hate speech and xenophobia, hidden discrimination against some groups of children persisted. This included refugee children, unaccompanied foreign children, children with disabilities and children whose first language was not German. The Experts denounced the inconsistent application of the principle of the best interest of the child in asylum.
Responding, the delegation said that since the 1960s, Austria had had to grapple with the challenges related to the education of the children of migrants and migrant workers, who did not speak German. The arrival of a large number of Syrian refugee children in 2015 had been a major challenge. Austria had allocated €143 million in additional funding for their integration in the education system. The Aliens Police Act stipulated that children under the age of 14 must not be detained pending deportation. For those above the age of 14, the age for the obligatory application of measures less severe than detention had been raised from 16 to 18 years.
Experts noted with concern that the 2018 constitutional amendment and the transfer of exclusive competences for child and youth welfare to the regions could lead to the fragmentation and inconsistency in the application of children’s rights legislation across the national territory. As a party to the Convention, Austria must ensure its uniform and non-discriminatory application in all the regions and guarantee equal treatment and same high-quality standards for all the children in the country.
The delegation, headed by Helmut Tichy, Director General for Legal Affairs, Ministry for Europe, Integration and Foreign Affairs of Austria, reassured the Committee by explaining that each region had to ensure the conformity of regional legislation with Austria’s international obligations. Constitutional procedures were in place to verify that regions legislated in line with international law, and each law had to pass the child rights impact assessment. The next step, the delegation added, was to ensure harmonization between the regions (Länder) and avoid the development of divergent legislation.
Olga Khazova, Committee Co-Rapporteur for Austria, in her concluding remarks, recognized the challenges caused by the influx of migrants and refugees and hoped that Austria would find a balanced approach to the complex issues it was facing, including the headdress ban.
Mr. Tichy reassured the Committee that its concluding observations would influence human rights discussions in Austria in the years to come.
Luis Ernesto Pedernera Reyna, Committee Chairperson, urged Austria to disseminate the concluding observations in child friendly language.
Olga Khazova and Gehad Madi were the Committee’s Co-Rapporteurs for the examination of Austria’s report.
The delegation of Austria consisted of representatives of the Ministry for Europe, Integration and Foreign Affairs, Federal Ministry for Labour, Social Affairs, Health and Consumer Protection, Federal Ministry of Education, Science and Research, Federal Ministry of the Interior, Federal Ministry of Justice, and the Permanent Mission of Austria to the United Nations Office at Geneva.
The Committee will issue the concluding observations on the report of Austria at the end of the session on 7 February. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage .
The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/ .
The Committee will next meet in public at 3 p.m. on Thursday, 6 February to hold an informal meeting with States.
The Committee has before it the combined fifth and sixth periodic report of Austria ( CRC/C/AUT/5-6 ).
Presentation of the Report
HELMUT TICHY, Director General for Legal Affairs, Ministry for Europe, Integration and Foreign Affairs of Austria, said that Austria had welcomed the Committee’s concluding observations of 2012 and had withdrawn in 2015 three reservations and one declaration to the Convention.
The Federal Constitutional Act on the Rights of Children 2011 had been strongly inspired by the Convention and had created a number of specific constitutional guarantees for children. This constitutional law had stipulated in its article 1 the primacy of the best interest of the child, a principle that had guided the family law for decades. As a consequence, the best interest of the child was increasingly taken into consideration and implemented by the legislature, law enforcement authorities and in the case-law of the Constitutional Court, which used it as a guiding principle and as a criterion to assess the constitutionality of laws and administrative acts. An overall evaluation of the impact of the Constitutional Act on the Rights of Children was part of the new Government’s programme since 7 January 2020.
The best interest of the child played a decisive role in the recasting of competencies between the federal State and the nine regions, Mr. Tichy continued. In 2018, Parliament had decided to transfer certain legislative powers to the regions, including child and youth welfare. Regions thus played a vital role in implementing children’s rights. In January 2020, a formal agreement between the federal State and the regions had entered into force, to maintain and further develop the level of protection and child and youth welfare. The new definition of the best interest of the child, introduced in the Austrian Civil Code in 2013, contained a catalogue of 12 criteria which served as a basis for decision makers in assessing the best interest of the child in a concrete situation.
The Juveniles Court Act had been reformed in 2015 to ensure that young people were only detained when necessary and as long as necessary. Detained young offenders enjoyed training, education and coaching measures to facilitate their resocialization and reintegration. Since 2016, it was possible to postpone a detention to allow a young offender up to the age of 21 to finish his or her training and education.
Turning to the administrative detention of unaccompanied minors seeking asylum, Mr. Tichy said that the Aliens Police Act stipulated that children under the age of 14 must not be detained pending deportation. For those above the age of 14, the age for the obligatory application of measures less severe than detention had been raised from 16 to 18 years.
At the international level, juvenile justice was one of Austria’s focuses in the United Nations General Assembly and the Human Rights Council. Austria was also a supporter of the United Nations Global Study on children deprived of liberty, which was launched in Geneva in November 2019.
The new Government programme paid special attention to the fight against child poverty and explicitly recognized the high poverty risk of single parents and their children. As the opportunities for children were largely determined by their parents’ income, the new Government was planning to implement a series of measures to increase the income of households. One of the major steps in the fight against child poverty was to increase employment and integrate employable persons into the labour market. An expansion of high-quality childcare facilities also for small children would facilitate the participation of parents in the labour market and reduce the risk of poverty for children. A reduction of the income tax also for families with low incomes and a further increase of the already existing tax benefit for families would help to reduce the risk of child poverty.
The protection of children from violence was one of the central priorities. The ban of violence against children was guaranteed by the Criminal Code and the Constitutional Act on the Rights of Children. A recently concluded study for the period 1977-2019 had shown widespread knowledge of the ban on violence against children and a broad and firm rejection of serious forms of violence against children. The amendments to the Violence Protection Act of 1 January 2020 had improved the protection of children against violence. A mobile protection zone of 100 meters around victims of domestic violence had been introduced and the rights of particularly vulnerable victims, including children, had been further extended. On the European level, Austria was working to create a “Violence-free zone Europe”.
In conclusion, Mr. Tichy reaffirmed that Austria was aware that ensuring the well-being and the best possible development of all children in Austria was a constant task, and that there were areas where more must be done.
Questions by the Committee Experts
GEHAD MADI, Committee Co-Rapporteur for Austria, welcomed the withdrawal of reservations to the Convention on the Rights of the Child and took note of the 2018 constitutional amendment and the transfer of the exclusive competences of child and youth welfare to the regions. The Committee was very concerned that this shift in competence might result in different application of the legislation, fragmentation and inconsistency in the application of children’s rights across the Austrian territory, he said. Austria was the State party to the Convention, not the regions (Länder), and as such it had the responsibility for the uniform and non-discriminatory application of the Convention throughout the territory.
Mr. Madi regretted the absence of a comprehensive policy and strategy for the implementation of all children’s rights as stipulated in the Convention. Furthermore, a variety of bodies and ad hoc agreements between the Government and the regions could not replace a single body in charge of the coordination of the implementation of the Convention throughout the territory.
Turning to independent monitoring mechanisms, the Co-Rapporteur noted that the mandate of the Ombudsboard did not clearly encompass all children’s rights. What was its status under the Paris Principles? Another concern was the independence of the Ombudsperson for children and youth of the Federal Chancellery, which was a part of the Ministry for Youth.
What measures were in place to meet the Sustainable Development Goal 17 targets for the financing for development? How did Austria ensure a child rights-based approach in its trade agreements and development aid policies with other countries?
On children’s rights and the business sector, were there regulations in place to ensure that the Austrian business sector complied with national and international labour, environment and other standards in the conduct of their business, domestically and abroad?
OLGA KHAZOVA, Committee Co-Rapporteur for Austria, noted that although the age of marriage was 18, children under that age could still marry with required authorisation. There were some 200 cases of early marriages annually, primarily among Muslim and Roma communities – would Austria consider banning marriage under the age of 18 under any circumstances?
The Co-Rapporteur noted the strong measures that Austria was taking to combat racist and hate speech and xenophobia, however, problems in the protection of children from discrimination persisted. Refugee children, unaccompanied foreign children, children with disabilities, children whose first language was not German, and children of temporary workers from Eastern Europe were some of the groups that continued to suffer hidden discrimination.
Ms. Khazova asked the delegation to update the Committee on the status of a proposed ban that would prevent children from wearing in school religious or cultural clothing that covered the head. She asked whether the ban concerned any head cover or was it specifically focused on the headscarf that Muslim girls wore, and was concerned about the discriminatory nature of the measure.
Praising the reduction in the voting age to 16, the Co-Rapporteur remarked that it opened the space for political discussions with children and asked about civic education focused on this lower voting age for children and teachers.
She also commended the new law that would guarantee nationality to descendants of victims of Nazi persecution. Under this law, nationality would be granted to children, grandchildren and great-grandchildren of a person who had been forced to leave Austria. She asked the delegation to comment on baby boxes in the context of the child’s right to identity.
Ms. Khazova then turned to health issues and took positive note of the decline in the prescription of medication for attention deficit disorder. How were the parents involved in the decisions on therapy, and were they informed about harmful effects of such medications and the available alternative approaches. She asked the delegation about the overmedication of youth in residential mental health institutions, the expansion of the ban on public smoking, and the measures to improve measles vaccination coverage.
Turning to the protection of children from climate disaster, Ms. Khazova asked about the policies in place to address the steep increase of greenhouse gas emissions from the transport sector, to reduce subsidies for fossil fuel use and consumption, and to comply with European goals and regulations.
Other Experts referred to the transfer of competencies from the federal to regional levels and noted that the Swiss example showed the need for a delicate balance between cantons and the federation. Harmonization and non-discrimination were important elements and at the local level, social operators needed to have a bird’s eye view of practices in other Länder. What system was in place to harmonize training and capacity building of people working with children and delivering services to children at the regional level?
The Experts turned to the inclusion of children with disabilities and asked about the implementation of the national action plan on persons with disabilities throughout the State territory. Some of the regions were working on the inclusion of children with disabilities, but those projects remained localized, they noted. They asked the delegation to provide information on the deinstitutionalization of children with disabilities and to comment on the reports of the over-representation of boys and children of foreign origin among children with disabilities.
Replies by the Delegation
Responding, the delegation said that Austria was a federal State in which legislative competencies could be found at the federal or regional levels. Each region had an obligation to ensure that the legislation respected Austria’s international obligations. Constitutional procedures were in place if the tasks of the regions were not correctly implemented in conformity with international law. The transfer of competencies that had occurred in 2018 had clarified the division of responsibilities between the central and regional authorities in terms of child and youth welfare.
The next step was to ensure harmonization and to avoid the development of very divergent legislation. One of the ways to ensure consistency was the mechanism of child rights impact assessment – each piece of legislation had to be assessed though this process. Each Land had a fully independent ombudsperson.
With regard to the independence of the Ombudsboard, Austria was the first country in continental Europe that had introduced it in 1977. The body was composed of three members nominated by Parliament and its independence was guaranteed by the Constitution. The Ombudsboard had a very wide mandate and was very much respected in the country.
Austria was committed to reaching the target of financing for sustainable development of 0.7 per cent of the gross domestic product and was working on gradually achieving this goal. As a Member State of the European Union, Austria followed its regulations and legislation, including in the area of human rights. Human rights were an essential part of trade agreements in the European Union; any violations could lead to a suspension of agreements. Children’s rights were an important concern of official development policy.
Austria adhered to the Organization for Economic Co-operation and Development guidelines on business and human rights and was also implementing European Union rules.
The ban on certain clothes in school was hotly debated, the delegate continued. Because kindergartens were the responsibility of the regions, there was an agreement between the Federal Government and the nine regions that prohibited the wearing of head covering garments in kindergartens. Wearing of head covering garments was prohibited in primary schools up to the age of 10 and the extension of the ban up to the age of 14 was in the new Government programme. The wording of the ban did not refer to any specific religion but in practice it was clearly directed at Muslims, said the head of the delegation.
The fact book “Children in Austria”, available on the Internet, contained all available data on children and on the allocation of resources for children.
In 2019, smoking was prohibited in all public areas where children were present. Special provisions were in place for prescribing Ritalin. Several incentives were in place to increase measles vaccination coverage, for example the vaccination was free of charge up to 30 years of age. The screening had identified children under the age of two as a group where additional incentives were needed to increase the coverage.
The new Government programme had adopted disabilities as one of the priorities. The National Action Plan on disabilities 2012-2020, extended to 2021, contained 250 measures of which almost 70 per cent had been implemented. In 2017, a working group on the representation of persons with disabilities in the media had developed a set of recommendations on this topic, including to focus on capacities and capabilities and not on disabilities and dependency. A disability pass was available to individuals who had at least 50 per cent disability. The Government was working on drafting a new action plan with the increased participation of persons with disabilities and different regions.
Women received information about breastfeeding during prenatal checks, while specialized nurses were at hand in hospital after the delivery. Maternity clinics were well regulated and had procedures for complex or risky births.
Questions by Committee Experts
In the next round of questions, GEHAD MADI, Committee Co-Rapporteur for Austria, welcomed the efforts to ensure a childhood free of violence and asked about the report on that theme for the 2014-2019 period. He took note with concern of the low number of convictions for grooming and cyberbullying following the amendments to the Criminal Code and asked about measures in place to enable and encourage children to report abuse, including sexual abuse, by clergy and in sports.
Female genital mutilation was criminalized – how many cases had been brought to justice and what were the court decisions against perpetrators? What measures was the Government taking to protect intersex children from involuntary surgery and medical treatments?
The Co-Rapporteur requested more details about measures to expand inclusive education for children with disabilities and the implementation of plans to expand the removal of structural barriers in Vienna.
He further asked about age determination for asylum-seeking children and the appointment of guardians to unaccompanied ones. Care facilities in the Lower Austria province were private-run, surrounded by fenced wire and guard dogs. The best interest of the child was not routinely applied in decisions and services for asylum-seeking children and the way in which the care system was set was not conducive to the integration of those children.
The Committee had received reports that of 845 unaccompanied minors who had applied for asylum in Austria between January and October 2019, almost half had disappeared. Where were those children and what was being done to locate them?
On juvenile justice, the law allowed the detention of juveniles together with adults in “special cases” – what were those special cases?
Turning to children and armed conflict, the Co-Rapporteur inquired about children who had travelled to Syria to join armed groups there and how those who returned were treated by the authorities and the society.
OLGA KHAZOVA, Committee Co-Rapporteur for Austria, commended Austria for harmonizing the Länder child rights legislation. However, she remained concerned that the transfer of competences would hamper equal treatment and same high-quality standards for all children everywhere in Austria. What mechanism was in place to address the differences that would inevitably arise between the Länder?
What criteria were used in decision making on child removal from the family and what role did domestic violence between parents play in those decisions? How did the system of social benefits work in different Länder?
The expertise and services for victims of trafficking in persons were concentrated in Vienna, another Expert commented, and asked the delegation about the national referral mechanism for victims.
Replies by the Delegation
Citizenship or civic education was integrated throughout the schooling cycle and reflected in the curricula of all grades and all types of schools. The curriculum of the seventh and eighth grades included children’s rights, history and social science. Two modules specifically addressed human rights and the rights of the child. Beyond the general principle of providing citizenship education, the 2017 decree from the Ministry of Education had introduced intercultural instruction.
The Ministry had also issued the implementation decree for the so-called headdress ban, which was enshrined in the law. It specified how teachers were to deal with young girls who wore this type of clothing. Since this decree had been adopted, only eight such cases had been registered and all had been resolved in discussions between the teachers and school administration and the parents.
A decree on movement and sports was also connected to the headdress ban and it contained the actions and approach for teachers. The decree specified that, for safety reasons, girls up to the age of 10 must remove their headdress during sport instructions. The purpose of the diversity decree was to comply with the non-discrimination principle enshrined in the Constitution. All those decrees, the delegation said, were examples of citizenship education in schools.
Austria had used the thirtieth anniversary of the Convention on the Rights of the Child to renew the capacities and the competence of teachers to teach and promote children’s rights. Since the last review by this Committee in 2012, Austria had also enshrined in the law the obligation to include children’s rights in training for teachers at university level. The first cohort of teachers trained under this new approach and curricula would soon leave university and start teaching.
Austria had embraced the principle of the integration and inclusion of children with disabilities in mainstream education since 1993; in 1996, it had enshrined in law the right to inclusive education at primary and secondary levels. The new Government programme had taken a very broad approach to inclusive education, which was seen in the function of inclusion in the labour market. While an overwhelming majority of children with disabilities were integrated in mainstream schools, there were also special schools that catered to the needs of children with specific disabilities.
Since the 1960s, Austria had had to grapple with the challenges related to the education of the children of migrants and migrant workers, who did not speak German. The arrival of a large number of Syrian refugee children in 2015 had been a major challenge. Austria had allocated €143 million in additional funding for their integration in the education system.
An Expert remarked that the headdress ban was clearly geared towards Islamic veil since Jewish kippah and Sikh turban were exempted. Since the ban would soon be extended to the age of 14 (thus covering almost the entire period of compulsory education), and given the display of crucifixes in the classroom, the Committee was concerned that this could push young Muslim girls to enrol in private religious schools, where they could be radicalized.
The delegation said that the decrees clarified what teachers and schools should do when girls aged 6 to 10 came to school with headscarves, a phenomenon not common in public schools. Several days ago, a complaint had been lodged in the Constitutional Court, which would decide if the relevant paragraph in Education Law was constitutional or not. The Constitutional Court’s decision would clearly define the future of the ban.
Explaining the age determination in asylum procedures, the delegation said that Austria was fully aware of the vulnerability of unaccompanied minor asylum-seekers and had instituted special provisions to strengthen the protection of minors. The age determination procedure was voluntary and took place only if there was doubt about the age of the applicant. It included medical examination by a specialist doctor; this step was often sufficient to determine whether or not the applicant was a minor.
The next step in the procedure – which was voluntary, the delegation reiterated - was an x-ray of the wrist, followed by a CT scan of the jaw and teeth. In 2018, there had been 230 such examinations; in 98 cases, the applicant was unambiguously over the age of 18, in one case there were doubts, and the rest had been minors. In case of doubt, it was assumed that the asylum seeker was a minor. The procedure was fully aligned with the standards and recommendations of the United Nations Refugee Agency.
Between January and October 2019, 845 unaccompanied refugee children had requested asylum in Austria. The Government was unable to determine how many had “disappeared” from the accommodation centre, which was not an offence. The disappearance of an asylum-seeking child under the age of 14 was immediately reported to the child and youth welfare service police, which then started the search. The asylum procedure was suspended for a period of two years; if the child was found on Austrian territory and had not committed an offence, the procedure would resume.
Female genital mutilation was considered a grievous bodily harm and as such prohibited under the Criminal Code. There had been two cases in 2017 and another two in 2018, and in all of them the prosecutor had taken action.
The 2018 amendment to the Security Police Law had expanded the protection of victims of domestic violence. Until then, the police was authorized to expel the perpetrator of domestic violence, who was banned from entering the home, staircase or the school where the victim lived. However, the victim was not specifically protected outside of his or her home.
The amendment had expanded the spatial protection area and had introduced the personal protection zone of 100 metres around the victim, regardless of where she or he was. The measure applied to all victims of domestic violence, children and adults, male and female.
With regard to children who joined armed groups in Syria and Iraq, the delegation said that Austria had registered 21 such persons under the age of 18. Of those, four had returned, three to Austria and one to a third country. Since all the individuals were above the age of criminal responsibility, which was 14, the State protection authorities had introduced proceedings with the State Prosecutor Office. There was no State-run programme to remove persons from extremist groups nor for de-radicalization.
The 2016 amendments to the Criminal Code had expanded the definition of the victim of a hate crime based on religion and had criminalized the justification of genocide or a crime against humanity, as well as making the content of hate crimes publicly available.
An underage child was any child under the age of 14, which was the age of criminal responsibility. Adolescents were children aged 14 to 18 and they had a wider range of rights. A minor of age, that was to say above the age of 14, could earn wages, had the right to choose their education, and had the right to address the authorities if the parents did not respect her or his wishes in this regard.
In 2013, the best interest of the child had been connected to the youth and child welfare laws and the federal and provincial laws. The Federal Authority for Civil Matters ensured its uniform application throughout the national territory.
On juvenile justice, the delegation said that the law on protection from violence had entered into force on 1 January 2020 and it respected the best interest of the child. Most of the amendments to the Juvenile Justice Act amendments had reduced sentences for juveniles and young adults aged 18 to 21. Section 25 of the Criminal Code regulated sentences for the worst crimes - genocide, crimes against humanity and terrorism – including those committed by juveniles and young adults.
In custody and divorce proceedings, the authorities had an obligation to provide a special contact person to explain to the child what was happening, and to hear the child and reassure her or him that what was happening was not their fault. All communications with the child were confidential and the child’s right to privacy was respected. All divorce proceedings in which children were involved had to undertake mandatory mediation and parents were obliged to attend family consultations and educational courses.
As far as the neglect of children and removal of children were concerned, the delegation said that child protection services supported parents in caring for their children. The child and family legislation specified the conditions under which children and young people could be removed from the family and prescribed the necessary procedures. The first step was to determine the level of threat, which was the responsibility of the social services.
An Expert remarked on the scarcity of data on child sexual abuse in Austria, especially in light of recent disclosures and victims testimonies, including from athletes from the national ski teams. He requested the delegation to describe how child protection legislation was implemented and the structure of intervention in child sexual abuse cases, including forensic and interview services and how re-traumatization of victims was avoided.
The delegation said that the 2011 amendment to the Criminal Code had criminalized the initiation of contact with the child for purposes of sexual abuse or exploitation. The 2013 amendment to the sexual offences act had criminalized grooming, and in 2015, Austria had prohibited cyberbullying - the continued harassment by way of telecommunication or computer services.
A special commission had been established to examine the complaints of sexual abuse of children in church or State care settings. More than 2,000 victims of sexual abuse by the clergy had received compensation amounting to €25,000 and more than €90 million had been allocated to compensate victims of sexual abuse in care homes. In 2017, the remit of the commission had been expanded to psychiatric hospitals and in July 2019, more than 300 victims of sexual abuse in such settings had received the rights to a monthly income of €360 as a compensation for the loss of earning capacity.
Earlier this week, Austria had introduced eco taxation as a measure to mitigate climate change. Children were a dedicated target group in the climate change adaptation strategy, which contained specific measures that took into account the best interest of the child.
OLGA KHAZOVA, Committee Co-Rapporteur for Austria, in her concluding remarks, thanked the members of the delegation for their openness during the dialogue. The Committee was well aware of the challenges related to the influx of migrants and refugees. Referencing the headdress ban, Ms. Khazova hoped that Austria would find a balanced approach to the complex issues it was facing.
HELMUT TICHY, Director General for Legal Affairs, Ministry for Europe, Integration and Foreign Affairs of Austria, recalled in his conclusion that the new Government programme often referenced human rights and said that the Government was examining the ratification of the third Optional Protocol on communications procedure. The Committee’s concluding observations would influence human rights discussions in Austria in the years to come, he said.
LUIS ERNESTO PEDERNERA REYNA, Committee Chairperson, concluded by thanking the delegation and urged Austria to disseminate the concluding observations in a child friendly manner.
For use of the information media; not an official record
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