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Legal Eye eLetter

June 2013

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Legal Eye on the ICC



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The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC.

The Women's Initiatives for Gender Justice works in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan.

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The Hague, the Netherlands

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Dear Friends,

Welcome to the June 2013 issue of Legal Eye on the ICC, a regular eLetter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has eight Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), the Central African Republic (CAR), Kenya, Libya, Côte d'Ivoire and Mali.

In addition to the Legal Eye on the ICC, we also produce Women's Voices, a regular eLetter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC.

More information about the work of the Women's Initiatives for Gender Justice and previous issues of Women's Voices and Legal Eye on the ICC can be found on our website at www.iccwomen.org.


Kenya :: Prosecution withdraws all charges against Francis Kirimi Muthaura

On 11 March 2013, ICC Prosecutor Fatou Bensouda notified Trial Chamber V[1] that her Office was withdrawing all charges against Francis Kirimi Muthaura (Muthaura).[2] This is the first time the Office of the Prosecutor has withdrawn charges against an accused. The submissions of the Office of the Prosecutor, as well as the responses by the Defence and Legal Representatives of Victims, and the Chamber’s decision on the withdrawal, are discussed in more detail below.

Muthaura, initially charged jointly with Mohammed Hussein Ali (Ali) and Uhuru Muigai Kenyatta (Kenyatta), is one of six suspects charged in the context of the Kenya Situation. The Kenya Situation has been under investigation by the ICC since March 2010, when Pre-Trial Chamber II authorised then Prosecutor Moreno-Ocampo’s request to open an investigation proprio motu into the Situation in Kenya.[3] The Kenya Situation arose out of post-election violence in the country in relation to the General Elections in December 2007. Following the Prosecution’s application, in March 2011 the Pre-Trial Chamber issued summonses to appear for six suspects in two separate cases. The first case initially involved three suspects aligned with the Orange Democratic Movement at the time of the post-election violence, namely William Samoei Ruto (Ruto), Joshua Arap Sang (Sang) and Henry Kiprono Kosgey (Kosgey). The second case initially involved three suspects aligned with the Party of National Unity at the time of the post-election violence, namely Muthaura, Kenyatta and Ali. In January 2012, Pre-Trial Chamber II confirmed charges against Ruto, Sang, Muthaura and Kenyatta, but declined to confirm the charges against Kosgey and Ali.[4]

Muthaura and Kenyatta were charged as indirect co-perpetrators pursuant to Article 25(3)(a) for the crimes against humanity of murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts.[5] Ruto was charged as indirect co-perpetrator pursuant to Article 25(3)(a), and Sang as having otherwise contributed to the commission of crimes within the meaning of Article 25(3)(d) with three counts of crimes against humanity: murder, deportation or forcible transfer of population and persecution.[6]

The Prosecutor sought charges for gender-based crimes in the case against Muthaura and Kenyatta, which were confirmed in relation to the commission of rape in or around Nakuru between 24 and 27 January 2008 and in or around Naivasha between 27 and 28 January 2008. Along with charges of rape, the Prosecution had also brought evidence of forcible circumcision and penile amputation to support the charge of ‘other forms of sexual violence’. However, in both the decision issuing the summons to appear as well as in the decision on the confirmation of charges, the Pre-Trial Chamber recharacterised this evidence as ‘other inhumane acts’, on the grounds that, in the Chamber’s view, ‘the evidence placed before it does not establish the sexual nature of the acts of forcible circumcision and penile amputation visited upon Luo men’.[7] In addition, the Chamber stated that ‘not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence’.[8]

Trials for both cases were originally scheduled to begin in April 2013. However both trials have been postponed a number of times due to delays in the Prosecution’s disclosure of evidence, the need to address and decide on various Defence applications before the Chamber, the scope of post-confirmation investigations, and the consequent requests by the Prosecution to add new witnesses for the trial.[9] At the same time, Kenya held presidential elections on 4 March 2013, with Kenyatta and Ruto running on a combined ticket. Kenyatta’s victory in the elections was contested by opponent Raila Odinga, who argued that there had been ‘massive irregularities’.[10] However, on 30 March 2013 the Supreme Court of Kenya decided to uphold the election results, having found that the presidential election was conducted in compliance with the ‘provisions of the Constitution and all relevant provisions of the law’.[11] With his election, Kenyatta became the first ICC indictee elected to be a Head of State, and therewith became the first sitting Head of State to face trial before the ICC.[12] Article 27 of the Rome Statute stipulates that heads of states and other government officials are not exempted from criminal responsibility. The Rome Statue thus presents a modification to the rule in customary international law that heads of states and foreign ministers are granted immunity.[13]

All suspects in the Kenya Situation have voluntarily appeared before the ICC in response to summonses to appear, and have stated their commitment to continue to cooperate with the Court. However, the Defence teams for Kenyatta, Ruto and Sang have all filed a number of applications, including an application for the accused to participate in the trial via video link from Nairobi.[14] In response, the Prosecution[15] and the Legal Representative for Victims[16] have submitted that the Defence applications be rejected as there is no legal basis for this modality of trial hearings, and that granting the Defence requests would not be in the interest of justice. On 9 April 2013, as requested by the Trial Chamber, the Registry transmitted its observations to the Trial Chamber concerning possible modalities for video links to be used in the trial hearings in the two Kenya cases.[17] In addition to requesting to conduct the trial via video link, the Defence for Ruto and Sang have filed applications for conducting in situ hearings, either in Kenya or Tanzania.[18] Most recently, the Defence for Ruto has filed an application requesting the Trial Chamber to allow Ruto to waive his right to be present at trial.[19] At the time of writing, the Trial Chamber is yet to rule on these applications.


The Prosecution’s decision to withdraw charges against Muthaura

Prosecutor Fatou Bensouda notified Trial Chamber V of her decision to withdraw all charges against Muthaura during a status conference on 11 March 2013. The Prosecutor stated that her Office had proceeded with the case against Muthaura in ‘good faith, believing that there was a case against him’, but had come to the conclusion that there is no longer ‘a reasonable prospect of conviction at trial’ and that there is no prospect that further investigations will remedy this.[20]

On the same day, the Prosecution notified the Chamber in writing of its withdrawal of all charges against Muthaura. The Prosecution explained the reasons for withdrawing charges, emphasising that ‘the Muthaura case has presented serious investigative challenges, including a limited pool of potential witnesses, several of whom have been killed or died since the 2007-2008 post-election violence in Kenya, and others who are unwilling to testify or provide evidence to the Prosecution’.[21] The Prosecution stated that despite assurances of its willingness to cooperate with the Court, the Government of Kenya has ‘in fact provided only limited cooperation to the Prosecution, and has failed to assist it in uncovering evidence that would have been crucial, or at the very least, may have been useful’ in the case against Muthaura.[22] Moreover, the Prosecution observed that there have been ‘post-confirmation developments with respect to a critical witness’ against Muthaura, who recanted a significant part of his incriminating evidence after the confirmation decision was issued, and who admitted accepting bribes from persons allegedly holding themselves out as ‘representatives of both accused’.[23] Although not mentioned in the Prosecution’s notification, it was clear from subsequent submissions that the witness in question concerned Prosecution Witness 4, who the Prosecution no longer intends to rely on at trial. [24]

In this written notification, the Prosecution elaborated on the legal basis for the decision to withdraw charges. The Prosecution acknowledged that the proceedings in the case were at a stage between confirmation of the charges and the commencement of the trial during which procedures for withdrawal of charges are not explicitly provided in the Rome Statute. However, the Prosecution submitted that taking guidance from Articles 61(4) as well as 61(11), there is a legal basis for the Prosecution to use its discretion to withdraw charges and notify the Chamber of the decision.[25] This analysis was based on the premise that the trial only commences when opening statements are delivered, and that Article 61(9), according to which the Prosecution decision to withdraw charges after the commencement of the trial requires the permission of the Trial Chamber, therefore does not apply.[26]

In the alternative, the Prosecution submitted that, should the Chamber find that leave must be granted to withdraw the charges, the Chamber should take into account that ‘at this stage, there is no reasonable prospect’ of a conviction of Muthaura, and thus grant the leave requested.[27]

The Defence for Muthaura did not object to the Prosecution’s notification of the withdrawal of charges, and during the status conference, the Muthaura Defence submitted that the Prosecution has the discretion, at this stage of the proceedings, to withdraw the charges without leave of the Chamber, and argued that the case against Muthaura should end as soon as possible.[28] In contrast, the Legal Representative for Victims submitted that any withdrawal of charges requires approval by the Chamber.[29]


The Trial Chamber’s decision

On 18 March 2013, Trial Chamber V, by majority with Presiding Judge Ozaki dissenting, granted permission to the Prosecution to withdraw the charges against Muthaura, and ordered that the proceedings against Muthaura be terminated.[30]

The Chamber noted that neither Article 61(4) nor Article 61(9) of the Statute covers a situation where charges are withdrawn after the confirmation decision but before the commencement of the trial.[31] Instead, the decision was made with reference to the powers granted to the Chamber under Article 64(2), according to which the Trial Chamber shall ‘ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused …’[32] The Chamber emphasised that ‘in the present case, the Prosecution has submitted that current evidence does not support the charges against Mr Muthaura and that it has no reasonable prospect of securing evidence that could sustain proof beyond reasonable doubt [and] the Muthaura Defence does not contest the Prosecution's withdrawal’.[33]

Having granted the withdrawal of all charges, the Chamber decided that the conditions imposed on Muthaura in the decision issuing the summonses to appear in March 2011 will cease to have effect, but reminded him that the Court has jurisdiction over intentional acts of interference with witnesses.[34]


Judge Ozaki's partly dissenting opinion

The Presiding Judge of Trial Chamber V, Judge Ozaki, delivered a partly dissenting opinion to the decision on the withdrawal of charges against Muthaura, holding that the proceedings could have been terminated without the Chamber granting leave.[35]

Judge Ozaki held that according to Article 61(9) – which she considered lex specialis[36] in relation to amending or withdrawing the charges in the post-confirmation phase of proceedings before the Court – there is no requirement for the Prosecution to seek the permission of any Chamber in order to withdraw the charges in the period following confirmation and prior to the commencement of the trial proper. Accordingly, Judge Ozaki disagreed with the majority that a requirement for Trial Chamber approval of a Prosecution decision to withdraw the charges can be read into Article 64(2). In her opinion, this interpretation is inconsistent with the wording of Article 61(9), and more broadly with the Prosecution’s responsibility to initiate investigations and frame the charges upon which the accused is brought to trial.[37]


Judge Eboe-Osuji's concurring separate opinion

Judge Eboe-Osuji issued a concurring separate opinion to the decision on the withdrawal of charges against Muthaura. Judge Eboe-Osuji agreed with the outcome of the Chamber’s decision that the case against Muthaura be discontinued, and agreed that such a decision requires the permission of the Chamber.[38] Specifically, he stated his agreement with the submission of the Legal Representative for Victims, who had argued that in light of the procedures of the ad hoc tribunals and the ‘general flow of the Rome Statute’ – including the rights of the Defence, the interests of victims, and the interest of the ‘general order in the administration of justice’ – the Chamber’s approval of the Prosecution’s withdrawal of charges is required.[39] Accordingly, Judge Eboe-Osuji held that the silence of Article 61(9) should be understood as ‘an error of omission in legislative drafting’,[40] which the judges are expected to fill in light of the ‘context, object and purpose of the Rome Statute’.[41]

Relying on these interpretative methods, Judge Eboe-Osuji examined the interest of the defendant, the interests of victims and the interests of ‘orderly administration of justice’, noting with respect to the latter that ‘this Court would have acted in vain, if after all [its] decisions, the Prosecutor is to be free to withdraw confirmed charges before the commencement of trial, without the Court having a say’.[42]

As a caveat, Judge Eboe-Osuji noted that the ‘adjectival considerations’ surrounding the Prosecution’s decision to request that the charges be withdrawn, including the Prosecution’s allegations that witnesses have been killed, are ‘very troubling’ but cannot be addressed by the Court since the Prosecution has brought no charges against Muthaura relating to a possible involvement in this conduct.[43]

■ Read the Trial Chamber’s decision on the withdrawal of charges against Muthaura

■ Read Judge Ozaki's partly dissenting opinion and Judge Eboe-Osuji's concurring separate opinion here


Kenya :: Presidency dissolves and reconstitutes Trial Chamber V

On 8 April 2013, Judge Christine Van den Wyngaert submitted a request to the Presidency to be recused from Trial Chamber V pursuant Article 41 of the Rome Statute and Rule 33 of the Rules of Procedure and Evidence, referring to a number of reasons, some of which were redacted, including an ‘unprecedented and unusually high workload’, which the Judge indicated followed from working on five cases simultaneously.[44] Moreover, the Judge noted that the assignment to Trial Chamber V was from the outset intended to be temporary, and which she had accepted ‘on the clear understanding that it would be limited in time and only for the purposes of the preparation of the two Kenya trials’.[45] In a decision issued on 26 April 2013, the Presidency granted her request, and indicated that Judge Van den Wyngaert would be replaced in Trial Chamber V by Judge Robert Fremr.[46]

Similarly, on 2 May 2013, Judge Kuniko Ozaki, who had been assigned to Trial Chamber V on 29 March 2012, submitted a request to the Presidency ‘to be recused from exercising [her] functions as judge in the case of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang[47] Like Judge Van den Wyngaert, Judge Ozaki submitted her request pursuant to Article 41 of the Rome Statute and Rule 33 of the Rules of Procedure and Evidence, referring to her increased workload by virtue of sitting on three simultaneous trials.[48] For these reasons, and ‘given that the Ruto and Sang case is scheduled to begin shortly’, Judge Ozaki requested the Presidency, to be excused from her functions in that case. On 21 May 2013, the Presidency granted her request.[49]

In a subsequent decision issued that same day, the Presidency constituted two new Trial Chambers for the two Kenya cases.[50] The Presidency indicated that the decision was taken ‘to ensure the proper administration of justice, taking into consideration each Judge’s workload’.[51] In the decision of 21 May, the Presidency dissolved Trial Chamber V with immediate effect, temporarily attached Judge Olga Herrera Carbuccia to the Trial Division, and constituted the following two Trial Chambers:

■ Trial Chamber V(a), to deal with the case against Ruto and Sang, composed of Judge Olga Herrera Carbuccia, Judge Robert Fremr, and Judge Chile Eboe-Osuji (presiding judge); and

■ Trial Chamber V(b), to deal with the case against Kenyatta, composed of Judge Kuniko Ozaki (presiding judge), Judge Robert Fremr, and Judge Chile Eboe-Osuji.[52]

■ Read the Presidency’s decision replacing Judge Van den Wyngaert

■ Read the Presidency’s decision constituting two new Trial Chambers




1   At the time of this notification, Trial Chamber V was composed of Presiding Judge Kuniko Ozaki (Japan), Judge Chile Eboe-Osuji (Nigeria) and Judge Christine Van den Wyngaert (Belgium). As discussed in further detail below, on 26 April 2013 Judge Van den Wyngaert was replaced by Judge Robert Fremr (Czech Republic).
2   The Prosecution initially notified the Trial Chamber of its decision in a status conference and in writing, because it argued that there is a legal basis for the Prosecution to use its discretion to withdraw charges and notify the Chamber of the decision. In the alternative, the Prosecution submitted that, should the Chamber find that leave must be granted to withdraw the charges, the fact that there is insufficient evidence to establish a conviction would warrant the granting of leave. In a decision on 18 March, the Trial Chamber, pursuant to Article 64(2), granted the request.
3   ICC-01/09-19.
4   ICC-01/09-01/11-373; ICC-01/09-02/11-382-Red. For a more detailed analysis of the decisions on the confirmation of charges, see Gender Report Card 2012, p 128-130.
5   Pursuant to Articles 7(i)(a); 7(i)(d); 7(i)(k); 7(i)(g); and 7(i)(h).
6   Pursuant to Articles 7(i)(a); 7(i)(d); and 7(i)(h), Pre-Trial Chamber II had found that there are no substantial grounds to believe that Sang is responsible as an indirect co-perpetrator, as charged by the Prosecution, and instead charges were confirmed under Article 25(3)(d). For a more detailed analysis of the confirmation of charges decisions in the two cases see Gender Report Card 2012, p 128-130.
7   ICC-01/09-02/11-382-Red, para 266.
8   ICC-01/09-02/11-382-Red, para 265. For a more detailed analysis of the charges for gender-based crimes in this case see Gender Report Card 2012, p 128-130.
9   On 7 March 2013, Trial Chamber V decided to vacate the trial commencement date of 11 April 2013 in the case against Muthaura and Kenyatta, and provisionally set the new date for start of trial for 9 July 2013. The Chamber explained that the decision to delay the trial date related to ‘very serious issues’ raised by the Defence applications requesting a referral back to the Pre-Trial Chamber as well as ‘the defence submissions relating to the impact of delayed disclosure’, both of which must be ‘resolved before the trial can proceed’. See ICC-01/09-02/11-677, para 10. In its decision on the Kenyatta Defence Article 64(4) Application (discussed in further detail below), the Trial Chamber noted that the ‘most appropriate remedy’ for the ‘prejudice’ caused by post-confirmation investigation is to provide the Defence with ‘further time to conduct its investigations and to fully prepare for trial in light of the new evidence’, and invited the Defence to make submissions on the time needed for preparation before deciding on the trial date (but meanwhile retained 9 July as the trial date). See ICC-01/09-02/11-728, paras 124-128. On 14 May 2013, the Kenyatta Defence submitted its written observations on the time required to prepare for trial, requesting that the trial date be set for January 2014. See ICC-01/09-02/11-735-Red. On 8 March 2013, the Chamber decided to vacate the trial commencement date of 10 April 2013 in the Ruto & Sang case, and set the new date for start of trial for 28 May 2013. See ICC-01/09-01/11-642. Further, on 6 May 2013, the Trial Chamber announced that it had decided to provisionally vacate the trial date of 28 May 2013. The Chamber observed that it was ‘not feasible, at this stage’, to retain 28 May 2013 as the start date for the trial due to ‘a number of procedural issues relating to the conduct of proceedings’, including the Prosecution’s 12 April 2013 request to add five new witnesses to its witness list and add their evidence to its list of evidence. See ICC-01/09-01/11-722. The Chamber stated that a new trial date will be set following a public status conference which was conducted on 14 May 2013, during which the parties and participants presented their observations on the Prosecutor’s request to add five witnesses to the list of witnesses, the Defence’s request to vacate the trial date and related issues. See ICC-CPI-20130506-PR903.
10   Raila Odinga claimed that ‘among other irregularities, voters registers had been tampered with, Cord’s Presidential election agents were chased from the tallying center at Bomas of Kenya while he has also said that Cord has a pile up of documents about irregularities written to IEBC during the tallying process’. Further, Raila Odinga argued that there were ‘instances where the number of votes cast did not tally with the number of votes announced by IEBC while he also gave examples where votes from certain constituencies were announced twice without explanations’. See report on election rigging allegations here. See further here.
11   Order of the court in the Supreme Court of Kenya Presidential election avaiilable here. The judgment, which was published two weeks after the ruling, is available here.
12   However, an arrest warrant has been issued for Sudan’s sitting head of state, President Omar Al’Bashir (ICC-02/05-01/09-1 and ICC-02/05-01/09-95), and the former head of state of Côte d’Ivoire, Laurent Gbagbo, is detained in The Hague pending the confirmation of charges decision in his case.
13   On the immunity of heads of states and foreign ministers in customary international law, see here; and here.
14   ICC-01/09-02/11-667 and ICC-01/09-01/11-629.
15   ICC-01/09-02/11-703 and ICC-01/09-01/11-660.
16   ICC-01/09-02/11-686 and ICC-01/09-01/11-657.
17   ICC-01/09-01/11-673 and ICC-01/09-02/11-715.
18   ICC-01/09-01/11-567. On 22 February 2013, as ordered by the Trial Chamber, the Registry submitted its observations on a variety of issues relating to recommending that if the case is to take place away from the seat of the Court, the proceedings should held in Arusha and preferably at the ICTR, and that the duration of in situ proceedings be limited to two relatively short periods of 3-4 weeks maximum. ICC-01/09-01/11-617.
19   ICC-01/09-01/11-685.
20   ICC-01/09-02/11-T-23-ENG, p 3.
21   ICC-01/09-02/11-687, para 11.
22   ICC-01/09-02/11-687, para 11.
23   ICC-01/09-02/11-687, para 11.
24   See for example the Prosecution’s statements during the 18 March status conference concerning the question of whether the decision to no longer rely on Prosecution Witness 4 has any impact on the case against Kenyatta. ICC-01/09-02/11-T-24-ENG, p 36-37.
25   ICC-01/09-02/11-687, para 2.
26   ICC-01/09-02/11-687, paras 4; 7.
27  ICC-01/09-02/11-687, paras 8-9.
28  ICC-01/09-02/11-T-23-ENG ET, p 10-12.
29  ICC-01/09-02/11-T-23-ENG ET, p 21-22.
30  ICC-01/09-02/11-696.
31  ICC-01/09-02/11-696, para 10.
32   ICC-01/09-02/11-696, para 11.
33   ICC-01/09-02/11-696, para 11.
34   ICC-01/09-02/11-696, para 12.
35   ICC-01/09-02/11-698 (Partly Dissenting Opinion of Judge Ozaki), para 1.
36   The law governing a specific subject matter, which as a general principle overrides a law that governs a matter in more general terms. See here.
37   ICC-01/09-02/11-698 (Partly Dissenting Opinion of Judge Ozaki), paras 2-3.
38  ICC-01/09-02/11-698 (Concurring Separate Opinion of Judge Eboe-Osuji), para 1.
39  ICC-01/09-02/11-698 (Concurring Separate Opinion of Judge Eboe-Osuji), paras 9-11.
40  ICC-01/09-02/11-698 (Concurring Separate Opinion of Judge Eboe-Osuji), para 12.
41  ICC-01/09-02/11-698 (Concurring Separate Opinion of Judge Eboe-Osuji), para 29.
42  ICC-01/09-02/11-698 (Concurring Separate Opinion of Judge Eboe-Osuji), paras 30-33.
43  ICC-01/09-02/11-698 (Concurring Separate Opinion of Judge Eboe-Osuji), para 3.
44  ICC-01/09-02/11-729-AnxI, para 3. Judge Van den Wyngaert indicated that she serves in Pre-Trial Chamber I, dealing with the situations in the DRC, Darfur, Sudan and Côte d’Ivoire, and continues to serve on Trial Chamber II dealing with the case against Germain Katanga, in addition to serving on the bench of Trial Chamber V.
45   ICC-01/09-02/11-729-AnxI, para 2.
46   ICC-01/09-01/11-706-AnxII.
47   ICC-01/09-02/11-739-AnxI.
48   Judge Ozaki indicated that she is sitting on the following cases: The Prosecutor v. Bemba, The Prosecutor v. Ruto and Sang, and The Prosecutor v. Kenyatta. ICC-01/09-02/11-739-AnxI, para 2.
49   ICC-01/09-02/11-739-AnxII.
50   ICC-01/09-02/11-739 and ICC-01/09-01/11-745.
51   See here.
52   ICC-01/09-02/11-739 and ICC-01/09-01/11-745, p 4-5; ICC-01/09-02/11-741; ICC-01/09-01/11-750.


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