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ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 17.03.2005 ДЕЛО ГОРОХОВ И РУСЯЕВ (GOROKHOV AND RUSYAYEV) ПРОТИВ РОССИИ [АНГЛ.]

(по состоянию на 20 октября 2006 года)

<<< Назад


                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                             FIRST SECTION
                                   
                CASE OF GOROKHOV AND RUSYAYEV v. RUSSIA
                      (Application No. 38305/02)
                                   
                             JUDGMENT <*>
                                   
                       (Strasbourg, 17.III.2005)
                                   
       In the case of Gorokhov and Rusyayev v. Russia,
   --------------------------------
       <*>  This  judgment will become final in the circumstances  set
   out  in  Article  44 з 2 of the Convention. It may  be  subject  to
   editorial revision.
   
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mrs {N. Vajic} <*>,
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mrs E. Steiner,
       Mr K. Hajiyev,
       Mr D. Spielmann, judges,
       and Mr S. Nielsen, Section Registrar,
   --------------------------------
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
   
       Having deliberated in private on 24 February 2005,
       Delivers  the  following judgment, which was  adopted  on  that
   date:
   
                               PROCEDURE
   
       1. The case originated in an application (No. 38305/02) against
   the  Russian Federation lodged with the Court under Article  34  of
   the  Convention for the Protection of Human Rights and  Fundamental
   Freedoms  ("the Convention") by two Russian nationals,  Mr  Dmitriy
   Ivanovich  Gorokhov and Mr Rostislav Vladimirovich  Rusyayev  ("the
   applicants"), on 12 September 2002.
       2.  The applicants were represented by Mmes K.A. Moskalenko and
   E.L.  Liptser, lawyers practising in Moscow. The Russian Government
   ("the  Government")  were  represented  by  Mr  P.A.  Laptev,   the
   representative of the Russian Federation at the European  Court  of
   Human Rights.
       3.  The  applicants alleged a violation of Article 6  з  1  and
   Article 1 of Protocol No. 1 in that the respondent State failed  to
   enforce final judicial decisions in their favour.
       4.  On  8  January  2004 the Court decided to  communicate  the
   application to the Government. Under the provisions of  Article  29
   з  3  of  the Convention, it decided to examine the merits  of  the
   application at the same time as its admissibility.
       5. The applicants and the Government each filed observations on
   the admissibility and merits (Rule 54A з 1).
   
                               THE FACTS
   
                   I. The circumstances of the case
   
       6.  The applicants were born in 1952 and 1961 respectively  and
   both live in Moscow.
       7.   The  applicants  took  part  in  the  liquidation  of  the
   consequences  of  the  nuclear accident at  the  Chernobyl  nuclear
   plant. They were recognised as handicapped, becoming entitled to  a
   special disability pension.
   
             1. Court judgments in the applicants' favour
   
       8.  In  2000 the applicants brought a civil action against  the
   social  security  authorities, claiming that the amounts  of  their
   disability   pensions  had  not  been  properly  calculated.   They
   maintained  that  the  social  security  authorities  should   have
   increased  their pensions in line with the increase of the  minimal
   wage in Russia, but failed to do so.
       9.  On 29 January 2001 the Nikulinskiy District Court of Moscow
   satisfied  their  claims  awarding the  first  applicant  11,568.98
   Russian  roubles (RUR), and the second applicant RUR 14,862.5.  The
   arrears   awarded   to  the  applicants  by  the   District   Court
   constituted  more than 58 per cent of the amounts received  by  the
   applicants   from  the  social  security  authorities  within   the
   contested period. On 18 April 2001 this decision was upheld by  the
   Moscow City Court.
       10.  Later  this  year  the applicants  brought  a  new  action
   claiming the outstanding amounts of the disability pensions due  to
   them  for the period starting from January 2001. They also  claimed
   penalties  for  the delayed payment of their pensions  during  this
   period.
       11.  On 21 June 2001 the Nikulinskiy District Court awarded the
   first  applicant RUR 10,351 and the second applicant RUR 13,274  as
   the  outstanding amount of their pensions for the period January  -
   June  2001.  The  sums  awarded by the District  Court  as  arrears
   constituted  approximately 50 per cent of the amount  paid  to  the
   applicants  by the social security authorities during this  period.
   Both  applicants were also entitled to penalties, to  be  recovered
   from   the   social  security  authorities.  The   penalties   were
   calculated  on  the basis of the amounts due to the applicants  for
   the  period between January and June 2001. On 28 November 2001 this
   decision  was  upheld in the main by the Moscow City  Court,  which
   only  reduced  the  amount  of penalties  to  RUR  1,000  for  each
   applicant.
   
                      2. Enforcement proceedings
   
       12.  On an unspecified date between May and September 2001  the
   applicants  obtained  writs of execution in respect  of  the  first
   judgments  of  the Nikulinskiy District Court of January  2001.  In
   December  2001 the applicants obtained execution writs  in  respect
   of  the  decisions  rendered by the District Court  in  June  2001.
   These execution writs were forwarded to the bailiffs. However,  for
   a  certain period of time the judgments of the Nikulinskiy District
   Court remained unexecuted.
       13.  In  December 2001 the Ministry of Justice of  the  Russian
   Federation,  which  was  in charge of the  bailiffs,  informed  the
   applicants   that  the  execution  of  the  above   judgments   was
   conditional upon the availability of budgetary funds allocated  for
   these  purposes by the federal legislature and could not be carried
   out  through  the  bailiffs. The applicants were  advised  to  send
   their  writs  of execution directly to the Ministry of  Finance,  a
   State body in charge of distributing budgetary funds.
       14.  However, as follows from the letter of 5 March  2002,  the
   Ministry of Finance was no longer responsible for distributing  the
   pension  funds.  Consequently, in 2002  the  execution  writs  were
   forwarded to the Ministry of Labour and Social Security.
       15.  In  April  2002 the bailiffs discontinued the  enforcement
   proceedings. The applicants challenged the discontinuation, and  on
   1  November  2002 the Nikulinskiy District Court of Moscow  ordered
   the resumption the enforcement proceedings.
       16.  On 1 November 2002 the above judgments were enforced.  The
   authorities  paid  RUR 22,919.32 to Gorokhov and RUR  29,136.40  to
   Rusyayev.  On  5  November  2002 the money  were  received  by  the
   applicants.  On  20  February  2004  the  authorities  offered  the
   applicants additional compensation on certain conditions.  However,
   the applicants rejected this offer.
   
                II. Relevant domestic law and practice
   
       17.  The Russian Law on Enforcement Proceedings (No. 119-FZ  of
   21  July  1997)  designates  the court  bailiffs'  service  as  the
   authority charged with enforcement of court decisions (Section 3  з
   1).  Pursuant  to  this Law, any decision of  the  bailiff  can  be
   challenged  in  court  within 10 days  from  the  moment  when  the
   concerned  person  learned about this decision (Article  90  з  1).
   Articles  19  and  90  з 2 of this law stipulate  that  the  damage
   caused  by  the bailiffs should be compensated under general  rules
   of civil responsibility.
       18.  Article  1064  з  1  of  the Civil  Code  of  the  Russian
   Federation  provides  that  the damage  caused  to  the  person  or
   property  of  a  citizen  shall  be  compensated  in  full  by  the
   tortfeasor.
       19.  Under Article 1069 of the Civil Code a State agency  or  a
   State  official shall be liable to a citizen for damage  caused  by
   their  unlawful actions or failures to act. Such damage  is  to  be
   compensated at the expense of the federal or regional treasury.
   
                                THE LAW
   
        I. Alleged violation of Article 6 з 1 of the Convention
   
       20.  The applicants complained that the lengthy non-enforcement
   of  the court judgments in their favour rendered by the Nikulinskiy
   District Court on 29 January and 21 June 2001 constituted a  breach
   of  their  right to a court and the right to peaceful enjoyment  of
   their  possessions.  They  referred  to  Article  6  з  1  of   the
   Convention  and  Article 1 of Protocol No.  1  to  the  Convention,
   which, insofar as relevant, read as follows:
       Article 6
       "In  the  determination of his civil rights and obligations...,
   everyone   is   entitled   to  a  fair...  hearing...   by   [a]...
   tribunal..."
       Article 1 of Protocol No. 1 to the Convention
       "Every  natural  or legal person is entitled  to  the  peaceful
   enjoyment  of  his  possessions. No one shall be  deprived  of  his
   possessions  except  in  the public interest  and  subject  to  the
   conditions  provided  for by law and by the general  principles  of
   international law.
       The  preceding provisions shall not, however, in any way impair
   the right of a State to enforce such laws as it deems necessary  to
   control  the  use  of  property  in  accordance  with  the  general
   interest  or  to secure the payment of taxes or other contributions
   or penalties."
       21.   In   their  observations  to  the  Court  the  respondent
   Government  indicated that the judgments in the applicants'  favour
   had   been  duly  enforced  and  that  an  additional  compensation
   calculated  on  the basis of the Court's case-law in similar  cases
   had  been  offered to the applicants. On this ground the Government
   submitted   that   the  application  was  incompatible   with   the
   provisions of the Convention because the applicants were no  longer
   victims of the alleged violation.
       22.  In  reply to the Government's observations the  applicants
   accepted  that  the outstanding amounts of their pensions,  awarded
   by  the  courts,  had  been paid to them.  The  applicants  further
   recognised  that  the  Government had  offered  them  compensation,
   which, however, they did not accept.
       23.  In  their  additional  observations  the  applicants  also
   claimed that the social security authorities failed to comply  with
   the  decisions of the Nikulinskiy District Court of Moscow in  that
   they  did  not  increase the disability pensions in line  with  the
   raise of the minimum wage in Russia.
   
                           A. Admissibility
   
                  1. Non-enforcement of the judgments
                       in the applicants' favour
   
       24.  In  their  initial  application the applicants  complained
   about  the non-payment of the outstanding amounts awarded  to  them
   in  January  and June 2001 by the Nikulinskiy District  Court.  The
   Court  notes that these judgments entitled the applicants  only  to
   previous underpayments; no decision as to the future indexation  of
   their  pensions  has  ever  been taken  within  these  proceedings.
   Consequently,  the  complaint  that  the  above  decisions   remain
   unexecuted  because the pensions were not increased by  the  social
   security authorities is manifestly ill-founded.
       25.  As  regards  the  payment of the arrears  awarded  by  the
   Nikulinskiy  District  Court,  the  Court  notes  that,  once   the
   applicants  had  brought  proceedings to  Strasbourg  in  September
   2002,  the domestic authorities executed the judgments within  less
   than  two  months.  It is regrettable that the applicants  did  not
   inform  the Court about this fact at the relevant time.  The  Court
   finds  that,  in  so  far the applicants complain  about  the  non-
   enforcement as such, they could not any longer claim to be  victims
   within the meaning of Article 34 of the Convention.
   
                 2. Length of enforcement proceedings
   
       26.  However,  the  Court  notes  that  it  took  the  domestic
   authorities   from  eleven  to  sixteen  months  to   execute   the
   judgments,  which, without doubt, was the applicants' concern  (see
   з  20 above). The Court recalls in this respect that the "right  to
   a  court", derived from Article 6, comprises a duty of the State to
   implement   final  judicial  decisions  (see  Hornsby  v.   Greece,
   judgment of 19 March 1997, Reports of Judgments and Decisions 1997-
   II  з  40).  The  interference with this right may  shape  into  an
   absolute ban on execution. However, it may also take the form of  a
   delayed execution of the court judgment (see Burdov v. Russia,  No.
   59498/00,   ECHR   2002-III).  When  considering  the   applicants'
   grievances  in this way, the Court accepts that the applicants  may
   still  claim to be victims within the meaning of Article 34 of  the
   Convention  and,  thus, the Court has to examine whether  the  late
   execution of the judgments in the applicants' favour constituted  a
   breach  of  their "right to a court" implied by Article  6  of  the
   Convention.
       27.  Having regard to this aspect of the case the Court recalls
   that,  under Article 35 з 1 of the Convention, the Court  may  only
   deal  with applications introduced after all domestic remedies have
   been  exhausted and within a period of six months after  the  final
   domestic  decision.  In the present case, the  Government  did  not
   suggest  that  there  was  an effective  remedy  available  to  the
   applicants  under  Russian  law to  challenge  the  length  of  the
   execution  of judgments. The Court therefore, for the  purposes  of
   the  present case, considers that six months run from  the  end  of
   the  situation complained of (see, for example, Demirel  v.  Turkey
   (dec.), No. 30493/96, 9 March 1999).
       28.  As  to  the compliance with the six-month rule, the  Court
   notes  that  the  subject-matter of the present  complaint  is  the
   length of the execution proceedings in respect of the judgments  of
   29  January and 21 June 2001, as upheld on 18 April and 28 November
   2001  respectively. The applicants filed their grievances with  the
   European   Court   on  12  September  2002,  when   the   execution
   proceedings   in  respect  these  judgments  were  still   pending.
   Accordingly,  the application has been introduced  and  pursued  in
   accordance with the six-month rule prescribed in Article 35 з 1.
       29.  The  Court  further  notes  that  first  judgment  in  the
   applicants'  favour  was executed with a delay  of  one  year,  six
   months,  and  eighteen  days,  and that  the  second  judgment  was
   executed  within  one  year after it had  become  effective.  These
   delays  do not seem insignificant. Therefore, this complaint cannot
   be  regarded  as  manifestly  ill-founded  within  the  meaning  of
   Article  35  з  3 of the Convention. The Court concludes  that  the
   complaint  about  the  length  of  enforcement  proceedings  raises
   complex issues of facts and law, the determination of which  should
   depend  on  an  examination  of the merits.  No  other  ground  for
   declaring it inadmissible has been established.
   
                               B. Merits
   
                         1. General principles
   
       30. The Court accepts that not every delay in the execution  of
   a  judgment constitutes a breach of Article 6 з 1 of the Convention
   (see,  among recent authorities, Grishchenko v. Russia,  (dec.),  8
   July 2004, No. 75907/01). However, the delay may not be such as  to
   impair  the  essence of the "right to a court"  protected  by  this
   provision  (see  Immobiliare Saffi v. Italy [GC], No.  22774/93,  з
   74,  ECHR  1999-V).  The Court's task will be to establish  whether
   the  delays  in  executing the judgments in the applicants'  favour
   were  justified  in  the particular circumstances  of  the  present
   case.
       31.  The  Court recalls that the execution proceedings  are  an
   integral part of the "trial" for the purposes of Article 6  of  the
   Convention  (see, Hornsby v. Greece and Burdov v. Russia  mentioned
   above).  Consequently,  whether  the  length  issue  is  raised  in
   respect   of   a  trial  or  enforcement  proceedings,   applicable
   principles  are broadly similar. The limit of tolerance as  regards
   the  delay  in  honouring a judgment debt will depend of  different
   factors,  such  as  the complexity of the enforcement  proceedings,
   the   applicant's   own  behaviour  and  that  of   the   competent
   authorities,  the  amount and the nature of court  award  (see,  by
   analogy, Frydlender v. France [GC], No. 30979/96, з 43, ECHR  2000-
   VII, see also Grishchenko mentioned above).
   
        2. Application of these principles in the present case
   
       32.  Turning  to  the present case, the Court  notes  that  the
   applicants  were awarded a sum of money. Hence, the judgments  were
   not particularly difficult to execute.
       33.  As  regards the conduct of the parties, the Court observes
   that  the State authorities were perfectly aware of the applicants'
   claims,  and,  as  soon as the judgments in the applicants'  favour
   were  upheld on appeal, it became incumbent on the State to execute
   them.  It  is true that the enforcement proceedings were  initiated
   by  the  applicants with a certain delay (see з  12).  However,  as
   transpires  from  the  materials of the  case,  the  only  apparent
   reason   for   the  non-enforcement  of  the  judgments   was   the
   authorities'  reluctance to make adequate budgetary  appropriations
   (see  з  13). Therefore, whether the bailiffs were involved in  the
   enforcement  proceedings  or  not did  not  change  the  situation.
   Moreover,  a  person  who  has  obtained  an  enforceable  judgment
   against  the State as a result of successful litigation  cannot  be
   required to resort to enforcement proceedings in order to  have  it
   executed  (see Metaxas v. Greece, No. 8415/02, з 19, 27 May  2004).
   The  Government  present  no evidence that the  applicants  somehow
   contributed  to the overall length of the enforcement  proceedings.
   The  Court  therefore concludes that the whole period  between  the
   appeal   court's   decisions  upholding  the   judgments   in   the
   applicants'  favour  (18 April and 28 November  2001  respectively)
   and  the  date of receipt by the applicants of the amounts  due  to
   them  under  these judgment (5 November 2002) should be  considered
   as a delay in execution imputable to the State authorities.
       34.  As  to what was at stake for the applicants in the present
   case,  the  Court  notes that the sum awarded  by  the  Nikulinskiy
   District Court to each applicant constituted an important  part  of
   their  disability pensions, to which they were entitled as  victims
   of  the  Chernobyl nuclear accident (see з 9 and з  11).  From  the
   materials  of  the  case it appears that these  pensions  were  the
   applicants' main source of income. In view of the above  the  Court
   concludes  that  the domestic authorities should have  treated  the
   applicants' cases with special diligence.
       35.  Regard  being  had to the above considerations  the  Court
   concludes  that  that the length of the enforcement proceedings  as
   regards  the first judgment of January 2001 (one year,  six  months
   and  eighteen days) was clearly excessive. As regards the  duration
   of  the  second set of enforcement proceedings (eleven  months  and
   seven  days)  the Court notes that, although this length  does  not
   appear  unreasonable by itself, in the circumstances of the present
   case  and  especially given the importance of this court award  for
   the  applicants,  it was unjustified. The Court  accordingly  finds
   that  both  judgments  were  not enforced  within  the  "reasonable
   time".
       There has accordingly been a violation of Article 6 з 1 of  the
   Convention.
   
       II. Alleged violation of Article 1 of the Protocol No. 1
   
       36.  The  applicants complained that the failure  to  honour  a
   judgment  debt interfered with their property rights under  Article
   1 of Protocol No. 1 which reads as follows:
       "Every  natural  or legal person is entitled  to  the  peaceful
   enjoyment  of  his  possessions. No one shall be  deprived  of  his
   possessions  except  in  the public interest  and  subject  to  the
   conditions  provided  for by law and by the general  principles  of
   international law.
       The  preceding provisions shall not, however, in any way impair
   the right of a State to enforce such laws as it deems necessary  to
   control  the  use  of  property  in  accordance  with  the  general
   interest  or  to secure the payment of taxes or other contributions
   or penalties."
       37. The Government contested that argument.
   
                           A. Admissibility
   
       38.  The  Court notes that this complaint is linked to the  one
   examined above and must be therefore declared admissible.
   
                               B. Merits
   
       39.  The  Court  reiterates  that a "claim"  can  constitute  a
   "possession" within the meaning of Article 1 of Protocol No.  1  if
   it  is  sufficiently established to be enforceable (see  Burdov  v.
   Russia,  cited  above,  з  40; Stran Greek Refineries  and  Stratis
   Andreadis v. Greece, judgment of 9 December 1994, Series A No. 301-
   B, p. 84, з 59).
       40.  The  Court  further reiterates that,  in  so  far  as  the
   judgments  of 29 January and 21 June 2001, as upheld  on  18  April
   and  28  November 2001 respectively, are concerned, the  State  did
   not  discharge  its  duty to enforce them in a sufficiently  prompt
   and  adequate manner (see з 35 above). The Court considers that the
   impossibility  for the applicants to have these judgment  enforced,
   which  persisted for a relatively long period of time,  constituted
   an  interference  with their right to peaceful enjoyment  of  their
   possessions,  as  set  out  in  the first  sentence  of  the  first
   paragraph  of Article 1 of Protocol No. 1. The Court further  notes
   that the Government do not advance any plausible justification  for
   this  interference  and the lack of funds cannot  justify  such  an
   omission (see Burdov v. Russia, cited above, з 41).
       41. It follows that there has been a violation of Article 1  of
   Protocol No. 1 to the Convention.
   
           III. Application of Article 41 of the Convention
   
       42. Article 41 of the Convention provides:
       "If  the  Court  finds that there has been a violation  of  the
   Convention  or  the Protocols thereto, and if the internal  law  of
   the   High   Contracting  Party  concerned  allows   only   partial
   reparation  to be made, the Court shall, if necessary, afford  just
   satisfaction to the injured party."
   
                               A. Damage
   
                          1. Pecuniary damage
   
       43.  In  respect of pecuniary damage the first applicant claims
   RUR  90,939.70  and  the  second  applicant  RUR  110,966.  In  the
   Government's view, these claims are unsubstantiated.
       44.  The  Court  notes that the amounts claimed constitute  the
   alleged  underpayments of the applicants' disability  pensions  for
   the  period  after  June  2001. However, as  it  has  already  been
   established  by  the  Court (see з 24 above), the  court  judgments
   which  were  at the heart of the present case did not entitle  them
   to  any  future  raise  of their pensions. The judgments  concerned
   only  the arrears due to the applicants for the period before  June
   2001. Since the applicants presented no other claims in respect  of
   possible  pecuniary  damages caused by the lengthy  non-enforcement
   of  the  judgments in their favour, the Court considers that  there
   is no call to award them any sum on that account.
   
                        2. Non-pecuniary damage
   
       45.  The  applicants also claim compensation for  non-pecuniary
   damage  "in  the amount established in the case Burdov v.  Russia".
   In  their  comments  the Government consider  the  claim  for  non-
   pecuniary damages as excessive and unreasonable. Alternatively  the
   Government  indicate  that  if the Court  nevertheless  decides  to
   award non-pecuniary damages, a symbolic amount would suffice.
       46.  The  Court  accepts  that  the  applicants  have  suffered
   distress  because of the State authorities' failure to enforce  the
   judgments  in  their  favour within a reasonable  time.  The  Court
   recalls that in the case Burdov cited above and referred to by  the
   applicants  it made an award of EUR 3,000 for non-pecuniary  damage
   suffered  as  a  result of non-enforcement of  a  judgment  in  the
   applicant's  favour.  In  Burdov,  as  in  the  present  case,  the
   judgment at issue concerned the Chernobyl-victim's pension  payable
   as  compensation  for  health  damage leading  to  disability,  the
   applicant's main source of income.
       47.  The  Court notes, however, that the delay in execution  of
   the  judgments  in  the present case was shorter  than  in  Burdov.
   Taking  into account these aspects of the present case, as well  as
   other  relevant  factors, such as the amounts of the  court  awards
   the  Court on equitable basis awards to the each applicant EUR  900
   in  respect  of  non-pecuniary damage, plus any  tax  that  may  be
   chargeable.
   
                          B. Default interest
   
       48.  The  Court  considers  it  appropriate  that  the  default
   interest  should  be  based on the marginal  lending  rate  of  the
   European  Central  Bank, to which should be added three  percentage
   points.
   
               FOR THESE REASONS, THE COURT UNANIMOUSLY
   
       1. Declares admissible the complaint concerning delayed payment
   of  the  amounts awarded by the Nikulinskiy District  Court  on  29
   January  and  21 June 2001, as upheld on 18 April and  28  November
   2001   respectively,   and  the  remainder   of   the   application
   inadmissible;
       2.  Holds that there has been a violation of Article 6 з  1  of
   the Convention;
       3.  Holds  that  there has been a violation  of  Article  1  of
   Protocol No. 1 to the Convention;
       4. Holds:
       (a) that the respondent State is to pay each of the applicants,
   within  three  months from the date on which the  judgment  becomes
   final  according to Article 44 з 2 of the Convention, EUR 900 (nine
   hundred  euros) in respect of non-pecuniary damage, to be converted
   into  Russian Roubles at a rate applicable at the date of  payment,
   plus any tax that may be chargeable on that amount;
       (b)  that  from the expiry of the above-mentioned three  months
   until  settlement  simple interest shall be payable  on  the  above
   amount  at  a  rate  equal  to the marginal  lending  rate  of  the
   European  Central  Bank  during  the  default  period  plus   three
   percentage points;
       5.  Dismisses the remainder of the applicants' claim  for  just
   satisfaction.
   
       Done  in  English, and notified in writing on  17  March  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
   
                                                      Christos ROZAKIS
                                                             President
                                                                      
                                                       {Soren} Nielsen
                                                             Registrar
   
   

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