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Legal news from Tuesday, July 26, 2011




North Carolina House overrides veto on abortion waiting period bill
Chris Morris on July 26, 2011 3:35 PM ET

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[JURIST] The North Carolina House of Representatives [official website] voted Tuesday to override a veto by Governor Beverly Perdue [official website] on legislation [HB 854 materials] that would require a 24-hour waiting period before an abortion [JURIST news archive]. With a 72-47 vote [News-Record report], the measure, known as the "Women's Right to Know Act," will now go to the Senate, which on Monday overrode [Charlotte Observer report] three additional Perdue vetoes. The abortion legislation would also require women seeking an abortion to view an ultrasound of the fetus prior to the procedure. Supporters argue that the bill is necessary in order for women to be fully informed about their decision, but Perdue disagrees [press release; JURIST report], calling it "a dangerous intrusion into the confidential relationship that exists between women and their doctors." The legislation had originally passed the House 71-48 and the Senate 29-20.

The North Carolina government is one of several state legislatures to have acted recently to limit abortion rights. Both Texas and Florida [JURIST reports] have recently passed bills requiring ultrasounds before abortions. Last month, the Center for Reproductive Rights (CRR) [advocacy website] filed a lawsuit challenging the Texas law [JURIST report]. In March, South Dakota passed a law requiring a three-day waiting period [JURIST report] before an abortion—the longest waiting period in the country. That law is also facing a court challenge [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Kansas and Idaho [JURIST reports]




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Nigeria president pushes for longer presidency term
Maureen Cosgrove on July 26, 2011 2:54 PM ET

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[JURIST] Nigerian President Goodluck Jonathan [BBC profile; JURIST news archive] on Tuesday announced his intentions to propose a constitutional amendment [press release] that would provide a single, extended tenure for the president of Nigeria and its 36 governors. The president and governors are currently limited to serving two four-year terms and are permitted to run for re-election between terms. Jonathan cited the high cost of organizing party primaries and general elections and the instability that regularly follows elections as reasons for proposing the amendment. Jonathan has not, however, provided any details about the length of the proposed extended term. A spokesperson for the president describes the proposed amendment as an effort to facilitate democracy:
President Jonathan's commitment to a single term for the President and Governors is borne out of a patriotic zeal, after a painstaking study and belief that the constitutionally guaranteed two terms for Presidents and Governors is not helping the focus of Governance and institutionalization of democracy at this stage of our development. A longer term for lawmakers would also help to stabilise the polity.
The proposed amendment will be sent to the National Assembly (NASS) [official website] for discussion and voting. If approved, the bill would not take effect until 2015, after Jonathan's presidential term has ended.

Nigerian elections have not proceeded without significant problems. In March, Human Rights Watch (HRW) [advocacy website] and the Nigerian Bar Association [association website] called for Nigeria's National Assembly to pass legislation creating a special electoral offenses commission [statement; JURIST report]. The commission would be tasked with investigating and prosecuting election-related abuses, including violence. In November, a judge for Nigeria's Federal High Court [official website] in Lagos ruled [JURIST report] that an amendment to the 1999 Nigerian Constitution [text] made by NASS cannot become operational law without the assent of the president. The amendment, known as the Constitution (First Amendment) Act 2010 [text, PDF] was passed in June 2010. It repeals the Independent National Electoral Commission Act 2006 in order to re-instate the Nigerian Independent National Election Commission (INEC) [official website]. Also in June 2010, the legislature passed [JURIST report] revisions to the constitution to clarify the exercise of executive authority in absence of the president. The constitutional revisions changed federal election law by removing a provision of the constitution that prohibited people who had been charged with fraud from standing for election and required candidates for federal office to have a degree beyond secondary education. Previous elections in Nigeria have been marred by violence and fraud [JURIST reports].




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France rights groups seek to freeze Syria president al-Assad's foreign assets
Zach Zagger on July 26, 2011 1:58 PM ET

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[JURIST] Two French rights groups have filed a complaint with the Prosecutors Office of Paris against Syrian President Bashar al-Assad [Al Jazeera profile] in order to determine whether he or members of his entourage have assets in France. Transparency International France and SHERPA [advocacy websites] said they filed the complaint [press release, in French] in order to freeze all of the assets in France that can be connected to al-Assad and stop them from being transferred to other jurisdictions to avoid judgment liability. The groups said that making sure the Syrian people receive restitution for the assets stolen by corrupt leaders is a fundamental part of the UN Convention Against Corruption [text, PDF; UNODC backgrounder]. They complain that the current asset freeze by the EU does not cover assets held for al-Assad by others in a possible corruption conspiracy. The group pointed to similar complaints against former Tunisian president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] and Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] that have led to criminal investigations for allegations of money laundering.

Syria has been struggling to reform amidst widespread protests, and al-Assad has come under international scrutiny for using force to control demonstrators. Earlier this week, a US State Department [official website] spokesman called the Syrian response "barbaric" [AFP report], while Secretary of State Hilary Clinton [official profile] said the al-Assad had lost legitimacy. Last week, two UN rights officials expressed concern [JURIST report] over reports of violence used by Syrian authorities against the country's own people. Special Adviser to the Secretary-General on the Prevention of Genocide Francis Deng [official profile, PDF] and Special Adviser on the Responsibility to Protect Edward Luck [academic profile] stated that reports of Syrian forces killing or arbitrarily arresting peaceful protesters indicate potentially grievous violations of international human rights laws, and urged officials to adhere to the government's 2005 pledge to protect its citizens. On Sunday, the Syrian government approved a draft law [JURIST report] that would allow the formation of political parties to oppose the ruling Baath Party, led by al-Assad, that would permit a political party to be established so long as it is not based on religious or tribunal lines and does not discriminate based on ethnicity, gender or race. Critics say al-Assad has achieved little reform despite promises [JURIST report].




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UN rights groups express concern over children's rights in CAR
Chris Morris on July 26, 2011 1:48 PM ET

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[JURIST] The UN Security Council's Working Group on Children and Armed Conflict [official website] expressed concern Monday about children's rights violations in the Central African Republic (CAR). Citing abuses [statement] like rape and other sexual violence as well as recruitment in armed conflict, the council condemned armed rebel groups in the country: the Lord's Resistance Army (LRA) [Global Security profile; JURIST news archive]; the People's Army for the Restoration of Democracy; and the Convention of the Patriots for Justice and Peace (CPJP). The council also called upon the CAR government "to work to ensure the immediate and unconditional release of all children associated with these groups, and to refuse any support for any militias that recruit and use children." Also, in advocating the cooperation of armed groups with the UN, the council welcomed a ceasefire last month [UN Refugee Agency report] by the CPJP with the CAR government.

The council's expressed concern comes days after the UN Security Council [official website] itself condemned [press release] the LRA for ongoing attacks in central Africa and called for the release of all civilians and non-combatants including child soldiers. The security council has also requested an official report on the LRA to be submitted in October. In addition, Amnesty International (AI) [advocacy website] released [JURIST report] a report last week about children as victims of war crimes in Somalia. In the report [text, PDF] entitled "In the Line of Fire: Somalia's Children Under Attack," AI provided evidence indicating that armed conflict in areas of Somalia has led to deteriorating human rights conditions, particularly for children. Armed military and civilian forces, like the Islamic terrorist group al-Shabaab [CFR backgrounder], regularly recruit Somalian children to serve as soldiers, often denying access to education and placing the children in danger of death and injury. The report contained vignettes illustrating the impact of fighting outbreaks on Somali youth. AI also enumerated recommendations for protecting children, including the monitoring military recruitment more effectively, initiation of investigations and cooperation with international human rights organizations.




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UN SG calls for 'early action' for releasing Myanmar political prisoners
Zach Zagger on July 26, 2011 1:18 PM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official profile] urged Myanmar to release political prisoners in a meeting Monday with pro-democracy leader Aung San Suu Kyi [JURIST news archive] and a Myanmar government minister, according to a statement [text] by Ban's spokesman. Ban was satisfied with positive developments made in the meeting with Suu Kyi and the Minister for Social Welfare U Aung Kyi. Suu Kyi recently called on the international community to help improve workers' rights in an address to the International Labor Organization (ILO) [official website] at its annual conference. She said the workers rights linked to the prisoner situation in Myanmar. Ban's spokesman said:
The Secretary-General encourages such contacts and dialogue. It will be recalled that his Special Adviser, had meetings with [Suu Kyi and Aung Kyi] during his recent visit to Myanmar. In line with the international community's expectations and Myanmar's national interest, the Secretary-General hopes such efforts will continue with a view to building mutual understanding through genuine dialogue. He also calls upon the Government of Myanmar to consider early action on the release of political prisoners in that country.
Myanmar underwent a transfer of power [BBC report] from a military regime to a civil system after holding its first elections in 20 years. But many critics argue the new regime is a sham since a party close to the military regime won with 80 percent of the vote. Last November, Myanmar's government released Suu Kyi, ending her almost eight years under house arrest.

Last month, Myanmar began releasing as many as 15,000 prisoners as part of an amnesty program after a visit by the UN secretary-general's envoy to Myanmar, Vijay Nambiar [official profile], who called on the country to release its political prisoners. But few of the prisoners being released by the government are political prisoners. Human Rights Watch [advocacy website] called the move a "pathetic response" to calls from the international community. Last December, a UN Human Rights Council (UNHRC) [official website] expert Tomas Ojea Quintana [official profile; JURIST news archive], a UN Special Rapporteur, urged Myanmar's military government [JURIST report] to release 2,202 political prisoners. Quintana called for the release of the "prisoners of conscience," many of whom, he says, suffer from health problems as a result of the harsh detention conditions. Quintana claims the release is necessary to promote democracy. Ban hailed Suu Kyi's release and encouraged the country to release all political prisoners [press release]. Suu Kyi's release came days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest.




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Advocacy group files suit to block World Trade Center cross
Chris Morris on July 26, 2011 11:44 AM ET

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[JURIST] American Atheists (AA) [advocacy website], a group that supports the separation of church and state, filed a lawsuit [text, PDF] Monday against the display of a cross at the World Trade Center (WTC) memorial. The cross, two intersecting beams found in the wreckage of the 9/11 terrorist attacks, was moved [9/11 Memorial report] to the 9/11 Memorial Museum [official website] last week from a nearby church amid communion and a blessing from a priest. AA, however, views the cross [press release] as a "Christian icon" and contends that Christianity does not deserve "preferential treatment." AA President Dave Silverman called for a more inclusive memorial display:
This cross is now a part of the official WTC memorial. No other religions or philosophies will be honored. It will just be a Christian icon, in the middle of OUR memorial. As a public accommodation, the memorial must allow us (and all other religious philosophies) to include our own display of equal size inside the museum, or not include the cross. Equality is an all-or-nothing deal.
AA claims the cross violates New York law and the First and Fourteenth Amendments to the US Constitution. New York Mayor Michael Bloomberg and New Jersey Governor Chris Christie [official websites] are named among the defendants.

Courts have disagreed on the constitutionality of religious displays. Most recently, a federal judge ordered [text, PDF] Florida's Dixie County Courthouse to remove [JURIST report] the Ten Commandments monument [JPG] displayed on the front steps of the courthouse because the display violated the Establishment Clause [Cornell LII backgrounder] of the First Amendment to the US Constitution. The US Court of Appeals for the Sixth Circuit [official website] in February upheld [opinion, PDF] a lower court ruling barring the Ten Commandments [JURIST report] from being displayed in an Ohio courthouse. In January, a three-judge panel of the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] unanimously that California's Mount Soledad cross, a 43-foot cross erected as a Korean War veterans' memorial, is unconstitutional under the First Amendment. The Sixth Circuit in June 2010 upheld an injunction [JURIST report] against Ten Commandment displays in two Kentucky courthouses, finding that the displays represented simply another strategy "in a long line of attempts" to comply with the Constitution for litigation purposes and did not "minimize the residue of religious purpose." A month earlier, the same court denied an en banc rehearing in another case [opinion, PDF] involving the display of the Ten Commandments in a Grayson County, Kentucky, courthouse. The court found the display to be constitutional because it presented a valid secular purpose from the outset. Highway memorial crosses and crosses on license plates [JURIST reports] have also been found unconstitutional by federal courts.




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Ethiopia counterterrorism law represses free speech: HRW
Maureen Cosgrove on July 26, 2011 10:22 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] called on the Ethiopian government Monday to stop using a "restrictive and vague" counterterrorism law [press release] to repress free speech. The Anti-Terrorism Proclamation of 2009 [text; JURIST report] provides for penalties of 10 to 20 years in prison for publishing statements "likely to be understood as encouraging terrorist acts." In July, an Ethiopian court used the law to justify the prolonged detention, without charge, of two journalists accused of conspiracy to commit terrorism. Deputy Africa Director of HRW Rona Peligal urged the Ethiopian government to reject the law:
The Ethiopian government should not rely on an overly broad anti-terrorism law to silence independent reporting in Ethiopia. It should either bring credible charges against the two journalists or quickly release them. Every detainee in Ethiopia should be granted immediate access to counsel and to their families. Accusations under the terrorism law should never mean the denial of basic human rights.
Though Ethiopia's Constitution [text] requires that a detainee have the opportunity to appear in court within 48 hours of detention, the Act extends that time limit to four 28-day periods, or up to four months. HRW also reported that torture is frequent at Ethiopian detention facilities and arrestees are often held without access to legal counsel, thereby intensifying the effects of the law.

Human rights in Ethiopia have been intensely scrutinized by the international community. HRW published a report [text] shortly after Ethiopia enacted the law, expressing concern that the law could "punish political speech and peaceful protest as terrorist acts and encourage unfair trials." The Ethiopian National Priorities Consultative Process [advocacy website] met in July 2009 to agree on a resolution [text, PDF] that expresses concern over civil rights. The group was troubled by proclamations being passed by the ruling regime, calling anti-terrorism laws and others "draconian" and repressive. In January of that same year, the Ethiopian Parliament adopted legislation [JURIST report] to prevent certain foreign charities from being involved in areas that the government believes are internal affairs including human rights and equality. In June 2008, HRW released a report attacking Ethiopian human rights practices in the Ogaden region [JURIST report]. The US House of Representatives passed the Ethiopia Democracy and Accountability Act of 2007 [JURIST op-ed], aimed in part at encouraging the improvement of the human rights situation in Ethiopia, but the bill never became law. In July 2007, HRW accused Ethiopian troops of violating international humanitarian law [JURIST report] by burning homes and forcibly relocating civilians in Ogaden.




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Illinois ex-Governor Blagojevich asks for retrial in corruption case
Chris Morris on July 26, 2011 10:06 AM ET

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[JURIST] Former Illinois governor Rod Blagojevich [personal website; JURIST news archive, convicted last month of fraud, bribery, and extortion, filed a motion Monday for a retrial. Last month, Blagojevich was convicted [JURIST report] by a jury in the US District Court for the Northern District of Illinois [official website] on 17 of counts including attempting to sell the Senate seat. He claims [Chicago Tribune report] that his previous trial was subject to judicial bias and error that undermined his case. The motion, while asserting that the court operated with a "closed mind," criticizes U.S. District Judge James Zagel of not giving proper respect to Blagojevich's testimony after assuring the defense that the testimony would be valued in the case. Blagojevich is currently out on $450,000 bail [Politico report] and faces up to decades in prison. The court is expected to respond to the motion sometime next month.

The jury that convicted Blagojevich remained deadlocked [Chicago Tribune report] on a charge of attempted extortion for solicitation of then-congressman Rahm Emanuel, who served as President Obama's chief of staff before being elected mayor of Chicago. Blagojevich was previously found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on 23 additional charges. The prosecutors dropped some of the charges [JURIST report] to simplify the case for retrial including charges for racketeering. Prosecutors also dropped charges against Blagojevich's brother, his chief fundraiser. Blagojevich had tried to avoid the second trial in March, but Judge Zagel declined to formally rule on his request to cancel the trial [JURIST reports], saying that the motion was neither serious nor did it raise a legal question. Blagojevich's lawyers had submitted a motion [text] to cancel the ex-governor's retrial and sentence him only on the single charge on which he was originally convicted.




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War crimes trial over Guatemala massacre begins
Zach Zagger on July 26, 2011 9:47 AM ET

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[JURIST] Four former Guatemalan soldiers plead not guilty to war crimes charges Tuesday as the first war crimes trial over the 1982 Dos Erres massacre began. Carlos Antonio Carias, Manuel Pop, Reyes Collin and Daniel Martinez are accused [BBC report] of being members of a military force that allegedly killed more than 250 people in the town of Dos Erres in 1982 during the country's 36-year civil war [GlobalSecurity backgrounder]. Three of the men were members of a special forces unit known as the Kaibiles, at least part of which is alleged to have played a role in the massacre. The military force was attempting to rout out insurgents during Guatemala's military rule under General Efrain Rios Montt. The four men pleaded not guilty arguing that they were not stationed with the group that carried out the atrocities at Dos Erres. They are accused of killing 201 farmers. There are also allegations [AP report] that many women and girls in Dos Erres were raped and killed during the massacre. The Guatemalan civil war resulted in more than 200,000 deaths, mostly among Guatemala's large indigenous Mayan population. According to a UN report released in 1999, the military was responsible for 95 percent of those deaths.

Earlier this month, the UN said it approved of the arrest [JURIST report] of a former top Guatemalan military figure accused of genocide, war crimes and crimes against humanity. General Hector Mario Lopez Fuentes, former chief of staff of Guatemalan armed forces from 1982-1983, is accused of directing military attacks against citizens, namely indigenous Mayans. Villages were destroyed and women and girls were systematically raped under his authorization. In response many deaths during the civil war, the Guatemalan government founded the National Compensation Program (PNR) in 2003 to deal with claims by civilians affected by the civil war. The PNR, after setting up its administrative structure, has begun to use its $40 million budget to work through a backlog of more than 98,000 civilian complaints. More than 1,000 complaints were filed in 2008. The PNR hopes to file the majority of the complaints within the next year.




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Third Circuit rules police can collect DNA sample from arrestees
Maureen Cosgrove on July 26, 2011 9:01 AM ET

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[JURIST] The US Court of Appeals for the Third Circuit [official website] on Monday ruled [opinion, PDF] 8-6 that law enforcement officers are permitted to obtain DNA samples from arrestees. Law enforcement officers sought a DNA sample from defendant Ruben Mitchell after he was indicted for attempted possession with intent to distribute cocaine pursuant to 42 USC § 14135a(a)(1)(A) [text], which permits the collection of DNA samples from individuals who are arrested, facing charges or convicted. Mitchell argued that the DNA collection violated his Fourth Amendment [text] right against unreasonable searches and seizures. The district court agreed, ruling that the DNA collection was unconstitutional. Though the government is permitted to appeal a criminal order in few circumstances, the court permitted the government to appeal the trial court's holding on the grounds that the district court conclusively decided a question of constitutional law and because the ruling resolved an important issue independent from the merits of the action. The appeals court overruled the lower court's decision, concluding that because arrestees have a diminished expectation of privacy, the government's interest in collecting and testing the DNA sample outweighed the intrusion on Mitchell's privacy. The court pointed to the government's compelling interest in identifying suspects and the unique attributes of DNA evidence to reach its conclusion.

US Attorney General Eric Holder [official website] instructed federal prosecutors in 2010 to use DNA evidence as much as possible and collect DNA evidence from all federal arrestees [JURIST report], in a reversal of Bush administration policy. In 2009, the US District Court for the Eastern District of California [official website] upheld the constitutionality [opinion, PDF] of mandatory DNA collection for all persons arrested or detained under federal authority, holding that although the collection of DNA from those arrested on federal felony, sexual abuse, or violent crime charges does constitute a "search" within the meaning of the Fourth Amendment, a person arrested based on probable cause "has a diminished expectation of privacy in his own identity." Federal agencies began collecting DNA samples [JURIST report] in April 2009, although they had been authorized to do so since 2006. About 1.2 million additional people could be added to the FBI's Combined DNA Indexing System (CODIS) [official website; FBI backgrounder] every year under the expansion, although people who are not convicted can request the destruction [WP report] of their DNA samples. In November 2007, the US Court of Appeals for the Ninth Circuit ruled [JURIST report] that all convicted federal felons must provide DNA samples to a federal database available to police departments throughout the country. In 2005, the Third Circuit ruled [JURIST report] that a convicted bank robber had to submit DNA samples to CODIS.




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Malta parliament passes divorce law
Zach Zagger on July 26, 2011 8:49 AM ET

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[JURIST] The Maltese parliament passed new legislation [text, PDF, in Maltese] Monday legalizing divorce in a historic move for the predominantly Roman Catholic country. The Malta House of Representatives [official website] overwhelmingly passed the bill [AP report] with 52 votes in favor, 11 against with five abstentions, in a country where most laws are passed by one vote. The bill will take effect in October after it is expected to be signed by the Maltese president. The vote reflects the result of a public referendum [JURIST report] on the issue held last May in which the public voted in favor of legalizing divorce with 53 percent of the vote. However, the referendum only reflected 72 percent of eligible voters in one of the lowest turnouts in recent history. Malta does allow for court-ordered separations and residents can apply for an annulment with the Roman Catholic Church [official website]. Malta also recognized foreign divorces, a route which many Maltese couples took in order to obtain a divorce. Malta is the last EU nation not to allow divorce.

Proponents of legalizing divorce argued that it was necessary to reduce the influence of the church in Maltese government and to respect civil rights. Opponents argued that it would encourage the breakup of families and increase separation rates. The change will leave Vatican City and the Philippines the last two countries in with the world that do not allow divorce. Chile was the last country to transition to legalized divorce in 2004 when its new marital code went into effect [JURIST report], replacing the code that had been in force since 1884. The new Chilean law permits divorce in the case of breach of marital duties, such as infidelity or domestic violence, or after a period of separation whose length depends on whether one party or both wish to end the marriage. Malta's vote comes a year after the European Commission (EC) [official website] proposed reforms to simplify and clarify international divorce laws [JURIST report]. Under the proposal, married couples from different EU countries could choose the country of the divorce, and the various courts would use a common formula to decide which country's law applies when a couple disagrees.




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