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Iulian Boldea (Editor) - Literature, Discourses and the Power of Multicultural Dialogue Arhipelag XXI Press, Tîrgu Mureș, 2017. eISBN: 978-606-8624-12-9
83 Section: Social Sciences
SOME CONSIDERATION REGARDING THE ART. 35 FROM ROMANIAN CONSTITUTION
Daniela Cristina Valea
Assoc. Prof., PhD, ”Petru Maior” University of Tîrgu Mureș
Abstract: the romanian state, through romanian constitution, republished, recognizes everyone‟s right
to a healthy, well preserved and ecologically balanced environment. starting from these provisions found in the article 35 para. 1 from romanian constitution, in the title ii regarding the fundamental
rights, freedoms and duties, the right to a healthy environment is a human fundamental right. also, the
romanian constitution establishes, in article 35 para. 3, that all individuals and corporate bodies are subject to the duty to protect and improve the environment. based on this text, i think that we can talk
about a fundamental duty as well.
in this paper we will address some aspects regarding the dual legal nature and the content of the right
to a healthy environment using, in particular, the jurisprudence of the romanian constitutional court in this matter.
Keywords: right to a healthy environment; protection of the environment; fundamental right; fundamental duty; jurisprudence of the romanian constitutional court.
Considering the criterion of the content and the purpose pursued1, the right to a
healthy environment2 is part of the category of social-economic rights, respectively, those
fundamental rights and freedoms which aim to ensure exclusively the material or cultural
development of individuals3 (linked to the economic
4 and social basis of the society
5).
Moreover, according to the chronological criterion, it is part of the ―third generation‖ rights,
their embodiment being largely based on the cooperation between states6, but we consider that
an important role belongs also to the individual, whether natural or legal person, both
according to the level of culture and ecological education, and in terms of day-to-day conduct.
It is a fundamental right of complex significance involving the responsibility7 of the State but
also of all individuals in an inflected effort to protect the environment8.
1 Ioan Muraru, Simina Tănăsescu, Drept constituţional şi instituţii politice, vol. I, All Beck Publishing House,
Bucharest, 2006, pp. 156 and 157; Bianca Selejan-Guţan, in I. Muraru and E.S. Tănăsescu (coord.), Constituţia
României – comentariu pe articole, C.H. Beck Publishing House, Bucharest, 2008, p. 326. 2 For details, see Ernest Lupan Dreptul la un mediu sănătos în legislaţia românească, in ―Juridical Current‖ no. 3-
4/2003, pp. 120-134. 3 Tudor Draganu, Drept constituţional şi instituţii politice – tratat elementar, Lumina Lex Publishing House,
Bucharest, 2000, vol. I, p. 155. 4Andrea Kajcsa, The role of Economy as material source of law, in „Curentul Juridic‖ Journal, no. 1/2014, pp.
65-63. 5 *** Drepturile şi libertăţile individuale – componentă esenţială a noii Constituţii a României, editorial in the
Journal ―Dreptul‖ no. 2/1992, p. 9. 6 Genoveva Vrabie, Marius Bălan, Organizarea politico-etatică a României, European Institute, Iaşi, 2004, p. 314. 7Cristina M. Kassai, Safeguarding the environment by choosing Green Public Procurement, in „Curentul
Juridic‖ Journal, no. 3/2017, pp. 33-39; Dragoș Chilea, Justice and democracy defeated by human rights, in
„Curentul Juridic‖ Journal, no. 4/2016, pp. 77-84. 8 Marieta Safta, Drept constituțional și instituții politice, vol. I Teoria generală a dreptului constituțional.
Drepturi și libertăți, Hamangiu Publishing House, Bucharest, 2014, p. 208.
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84 Section: Social Sciences
The European context
In defining the concept and the status of the right to a healthy environment, the
international acts concluded and the human rights statements have been decisive. At European
level, we mention Article 37 of the Charter of Fundamental Rights of the European Union on
the Protection of the Environment according to which ―a high level of environmental
protection and the improvement of the quality of the environment must be integrated into the
policies of the Union and ensured in accordance with the principle of sustainable
development‖9; the Aarhus Convention adopted on 25 June 1998; the European Convention
for the Protection of Human Rights and Fundamental Freedoms (hereinafter the European
Convention).
Even though the text of the European Convention has not explicitly enshrined the right
to a healthy environment, this fundamental right is still acknowledged nowadays, defended
and guaranteed in a ―praetorian‖ way, through the jurisprudence of the European Court of
Human Rights (hereinafter ECHR).
Thus, in the European Court case law, the right of the individual to live in a healthy
environment was circumscribed to the scope of the right to life provided by Article 8 of the
European Convention, together with the private life, family, domicile and post delivery,
physical and psychic integrity, the intimate sphere of the individual, the individual‘s right to
establish and develop relationships with others. Through its jurisdiction, the ECHR has thus
enshrined the right to a healthy environment as a component of the right to privacy, outlining
its contents on two coordinates10
: which could be called ―general principles in the field of
environmental law‖ and the state obligations11
.
Thus, the right to a healthy environment is a fundamental right circumscribed to the
sphere of the right to private life, the protection within Article 8 para. 1 and Article 6 para. of
the European Convention being extended also to this right. It has been ruled that pollution of
any kind (noise pollution, harmful chemical emissions, nuclear radiation, etc.) can harm the
right to privacy, or it can affect a person‟s physical well-being and may deprive the normal
use of his home, regardless the existence of a serious danger to the individual‘s health12
.
The content of the right to a healthy environment also includes the person‟s right to
information on the risks of pollution and the quality of the environment. Thus, it is the State‘s
duty to take all the necessary measures to stop or reduce any form of pollution, but also the
obligation to provide relevant information on the serious risks of pollution, both information
available to the general public and information which by their nature are not directly
accessible13
.
The Strasbourg Court has also held that the harm brought to the right to a healthy
environment through pollution gives rise to the right of obtaining a fair satisfaction, by
exercising the right to a fair trial, with all its inherent consequences14
.
9 http://eur-lex.europa.eu/legal-content/RO/TXT/?uri=CELEX%3A12012P%2FTXT. 10 ECHR - Judgment of 25 April 1978 in the case of Tyrer v. the United Kingdom; ECHR - Judgment of 21
February 1990 in the case Powell and Rayner v. The United Kingdom; ECHR - Judgment of 9 December 1994
in the case Lopez Ostra and Others v. Spain; ECHR - Judgment of 19 February 1998 in the case Guerra and
Others v. Italy; ECHR - Judgment of 16 November 2004 in the case of Moreno Gomez v. Spain; ECHR -
Judgment of 20 March 2008 in the case Budayena v. Russia; ECHR - Judgment of 30 November 2004 in the
case Oneryildiz v. Turkey; ECHR - Judgment of 8 July 2003 in the case Hatton v. the United Kingdom; ECHR -
Judgment of 10 November 2004 in the case Tashkin and Others v. Turkey. 11
Răzvan-Horaţiu Radu, Bogdan Cristea, Considerații referitoare la dreptul la mediu în jurisprudența Curții
Europene a Drepturilor Omului, in the journal ―Dreptul‖, no. 7/2009, pp. 217-219. 12 Mircea Duţu, Recunoașterea și garantarea dreptului fundamental la un mediu sănătos, in the Journal
―Dreptul‖, no. 6/2004, pp. 102-103. 13 Mircea Duţu, art. cit., pp. 103-104. 14 Mircea Duţu, art.cit., p. 102.
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85 Section: Social Sciences
The right to a healthy environment is one of those fundamental rights whose content
materializes especially through the established obligations.
In the case of the right to a healthy environment, these obligations are in fact
guarantees of the law, but also prerequisites for the accountability of the state15
.
It is the jurisprudence of the ECHR which has given consistency to guaranteeing the
right to a healthy environment by linking these guarantees to the (negative and positive)
obligations imposed on the State aiming to ensure the effectiveness of the protected rights16
.
The State has a principled negative duty and that is to refrain from interference. The positive
obligations are materialized by taking reasonable and appropriate measures able to protect the
rights to privacy and domicile and, in general, to a healthy environment17
, such as:
- developing the necessary legislative and administrative framework to ensure the
protection of the environment and human health;
- the State‘s obligation to assume authorization, implementation, exploitation, security
and control of potentially hazardous activities for the environment and humans;
- carrying out tests, surveys and studies to prevent and anticipate the harmful effects of
different activities in advance, and to establish a fair balance between the competing interests
at stake;
- ensuring that the public has access to information that will enable them to assess the
dangers they face;
- the obligation, based on the precautionary principle, of acting without delay in taking
effective measures capable of preventing or eliminating the risk of serious and irreversible
damage;
- guaranteeing access to justice.
The right to a healthy environment was thus enforced in the gallery of fundamental
rights, linked to the right to privacy and protected by the mechanisms and instruments of the
European Convention.
The national context
Complying with the European and world tendencies in this field, as well as the
obligations assumed by Romania in the process of accession to the European Union, the
Romanian legislator has given the right to a healthy environment an express constitutional
regulation, thus placing it at the level of fundamental right also in the domestic law.
According to Article 35 of the Romanian Constitution republished18
, the Romanian
state (our outline) - recognizes the right to a healthy and ecologically balanced environment.
The state also provides the legal framework for the exercise of this right. In order to outline
the content of the right to a healthy environment, the duty of natural and legal persons to
protect and improve the environment was established.
This provision was introduced in the text of the Basic Law19
once with the
constitutional review process that took place in 200320
.
15 Genoveva Vrabie, Marius Bălan, Organizarea politico-etatică a României, European Institute, Iasi, 2004, p.
360. 16 Mircea Duţu, art. cit., p. 104; Răzvan-Horaţiu Radu, Bogdan Cristea, art. cit., p. 219; Petrică Truşcă, Andrada
Trușcă Trandafir, Dreptul fundamantal la un mediu sănătos în jurisprudența CEDO, in the Transylvanian
Journal of Administrative Sciences, no. 1 (23)/2009, p. 103. 17
ECHR - Decision of 27 January 2009 in the case Tătar and Tătar v. Romania; ECHR - Judgment of
07.07.2009 in the case Brândușe v. Romania. 18 The revised Constitution was republished in the Official Journal of Romania no. 767 of 31 October 2003. 19 The Romanian Constitution of 1991 was adopted by the Constituent Assembly on 21 November 1991 and
approved by the national referendum organized for that purpose on 8 December 1991, the date of its entry into
force.
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86 Section: Social Sciences
Even before including the right to a healthy environment in the Constitution, there was
a legal framework – at the constitutional level - on the obligation to protect the environment.
First of all, Article 134 para. 2 letter e) from the Constitution of Romania, before the
revision, imposed on the state the obligation to ensure the restoration and protection of the
environment, as well as the preservation of the ecological balance, an obligation maintained in
the current Article 135 para. 2 letter e) of the Romanian Constitution republished. In
correlation with this obligation, we consider that it is also necessary to mention the duty of
creating the necessary conditions for the increase of the quality of life (formerly Article 134
paragraph 2 letter f), which became after the revision Article 135 para. 2 letter f) because a
high (or even reasonable) quality of life is compatible only with a healthy and
environmentally balanced environment.
Secondly, Article 41 para. 6 of the Constitution of Romania (now Article 44 paragraph
7 after the revision) stipulated the owner‘s obligation to exercise the prerogatives of the right
to property by complying the tasks related to environmental protection.
Thirdly, through and under Article 11 and 20 of the Constitution (which maintained
their number after the revision), international provisions in the field had already entered into
the sphere of domestic law, by accepting them, the Romanian state being committed to a
number of obligations.
On a secondary framework, the following may also be considered: the Environmental
Protection Law no. 137 of 29 December 199521
, repealed by G.E.O. no. 195 of 22 December
2005 on the protection of the environment; Water Law no. 107 no. 107 of 25 September
199622
; Law no. 86 of 10 May 2000 ratifying the Convention on Access to Information,
public participation in decision-making and access to justice in environmental matters, signed
at Aarhus on 25 June 199823
; Law no. 360 of 2 September 2003 on the regime of dangerous
chemicals and preparations24
.
After the review of 2003, the State‘s efforts to create an appropriate legislative
framework continued, with the adoption of: Law no. 157 of 24 May 2005 on the accession of
Bulgaria and Romania to the European Union25
; Law no. 265 of 29 June 2006 for the
approval of G.E.O. no. 195 of 2005 on environmental protection26
; Hunting and Protection of
Hunting Fund Law no. 407 of 9 November 200627
; G.E.O. no. 152 of 10 November 2005 on
Integrated Pollution Prevention and Control28
, repealed by Law no. 278 of 24 October 2013
on industrial emissions29
; G.E.O. no. 23 of 5 March 2008 on fishing and aquaculture30
.
20 Revision Law no. 429 of 18 September 2003, approved by a national referendum organized for this purpose.
On 29 October 2003 it was published in the Official Journal of Romania no. 758 of 29 October 2003 (date on which it entered into force), with the publication of the Constitutional Court‘s judgment no. 3 of 22 October
2003 to confirm the outcome of the referendum. 21 Republished in the Official Journal of Romania no. 70 of 17 February 2000 and repealed by G.E.O. no. 195 of
22 December 2005 on environmental protection, published in the Official Journal of Romania no. 1196 of 30
December 2005. 22 Published in the Official Journal of Romania no. 244 of 8 October 1996, as subsequently amended and
supplemented. 23 Published in the Official Journal of Romania no. 244 of 22 May 2000. 24 Published in the Official Journal of Romania no. 634 of 5 September 2003, republished in the Official Journal
of Romania no. 178 of 12 March 2014. 25 Published in the Official Journal of Romania no. 465 of 1 June 2005. 26 Published in the Official Journal of Romania no. 586 of 6 July 2006. 27
Published in the Official Journal of Romania no. 944 of 22 November 2006. 28 Published in the Official Journal of Romania no. 1078 of 30 November 2005. 29 Published in the Official Journal of Romania no. 671 of 1 November 2013. 30 Published in the Official Journal of Romania no. 180 of 10 March 2008, substantially modified by Law no.
317 of 13 October 2009 for the approval of Government Emergency Ordinance no. 23/2008 on fishing and
aquaculture, published in the Official Journal of Romania no. 708 of 21 October 2009.
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87 Section: Social Sciences
The national legislative framework, in line with the European exigencies, also imposes
those general principles capable of ensuring the fulfillment of the positive obligations of the
state and the achievement of the objective imposed by the declaration of environmental
protection, an objective of major public interest and by the conceptual constraints imposed by
the ―sustainable development of society‖, respecting the democratic values and rule of law31
.
Thus we mention the precautionary principle in decision-making; the principle of preventive
action; public information and participation in decision-making; free access to justice; the
principle of biodiversity and ecosystems conservation specific to the natural bio-geographical
framework; the sustainable use of natural resources; the principle of retaining pollutants at
source; the ―polluter pays‖ principle; the principle of integrating environmental policy into
other sector policies.
Actual means of achieving these objectives are provided by Article 4 from G.E.O. no.
195/2005: integrated pollution prevention and control using best available techniques for
activities with significant environmental impact; adopting development programs by
complying with the requirements of environmental policy; the correlation between the
territory planning and the urban planning with the environment; carrying out environmental
assessment before approving plans and programs that can have a significant effect on the
environment; environmental impact assessment in the initial phase of projects with significant
environmental impact; promoting normative acts harmonized with European and international
regulations in the field; creating a national integrated environmental monitoring system;
recognition of products with a low environmental impact through the award of the Ecolabel;
rehabilitation of areas affected by pollution; education and public awareness, as well as its
participation in the development and implementation of environmental decisions; removal of
pollutants with priority that directly and seriously endanger human health.
For example, the constitutional court has determined that ―the restrictive regulation of
the spaces where smoking is permitted32
is an option of the legislator, stating the
constitutional provisions which guarantee the right to life and the right to physical and mental
integrity of the person [Article 22 para. 1], the right to health care, while establishing the
State‘s obligation to take measures in ensuring hygiene and public health [Article 34 para. 1
and 2], the right of every person to a healthy and ecologically balanced environment,
respectively the obligation of the state to provide the legal framework for the exercise of this
right [Article 35 para. 1 and 2], as well as the right of children and young people to special
protection and assistance in the achievement of their rights [Article 49 para. 1]‖. The
constitutional provisions referred to above ―impose a number of positive obligations on the
state, which imply appropriate legislative measures for their implementation, for which the
legislator has a wide margin of appreciation, to protect the constitutional rights of citizens,
regardless they are smokers or non-smokers.‖33
Although the Romanian Constitution does not provide a legal definition, it uses the
notions of environmentally healthy and ecologically balanced, notions defined in some way
by the subsequent legislation. Thus, ―ecological equilibrium‖ consists of all the states and
interrelationships between the elements of an ecological system, which ensure the
maintenance of its structure, its functioning and its ideal dynamics‖. Moreover ―environment‖
is defined as ―the set of natural conditions and elements of the Earth: air, water, soil, subsoil,
landscape features, all atmospheric layers, all organic and inorganic matter, also the living
31Lucian Chiriac, L‟organisation d‟une justice indépendante – partie du mécanisme de construction de l‟état du
droit, in „Curentul Juridic‖ Journal, no. 2/2013, pp. 21-24. 32 Law no. 15/2016 for the amendment and supplementation the Law no. 349/2002 for the prevention and control
of the effects of tobacco products consumption, the Official Journal of Romania no. 72 of 1 February 2016.
33 Decision no. 29 of 27 January 2016, published in the Official Journal of Romania no. 196 of 16 March 2016.
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88 Section: Social Sciences
beings, natural interaction systems including the elements listed above, including some
material and spiritual values, quality of life and conditions which can influence the welfare
and health of man‖ (Article 2 of G.E.O. no. 195/2005).
Starting from the legal provisions, the right to a healthy and ecologically balanced
environment can be defined as the fundamental right consisting of that subjective right of the
individual, essential for physical existence and mental integrity, for the individual‘s material
and intellectual development, provided by the fundamental law, to live in an environment that
provides him/her with a certain level of quality of life, well-being and health.
The notion of a healthy environment implies not only an unpolluted environment, but
also an ecologically balanced environment, as established by the Declaration of Principles of
Human Rights and the Environment, which expressly recognizes the cultural and spiritual
importance of the natural environment34
.
The jurisprudence of the Romanian Constitutional Court in this matter
In defining the concept of the right to a healthy environment as a fundamental right,
the Constitutional Court of Romania also has a special role to play35
. It was referred to with
the resolution of the applications to challenge the constitutionality of the legal provisions
which, in the opinion of those who invoked these constitutional challenges, would have been
contrary to the Article 35 of the Constitution of Romania. Some constitutional challenges
even concerned the normative acts that formed the core of the legislative center of the right to
a healthy and ecologically balanced environment, and others focused on different subsequent
normative acts.
The the dual juridical nature comes from both normative regulations and
jurisprudence: both a fundamental subjective right and a fundamental duty for any subject of
law (individual or collective)36
.
By resolving these applications for challenging the constitutionality (all rejected for
that matter), the Constitutional Court of Romania mainly outlined a series of actual ways that
the obligations established under Article 35 of the Constitution of Romania take on, either by
the State or by the (legal) persons. Although, theoretically, the obligations deriving from the
content of the right to a healthy environment are also incumbent on the private individuals, in
the jurisprudence of the Romanian constitutional court there are no references on this matter
yet.
For example, it was stated that the legal provisions of Article 1 para. 2 from O.U.G.
no. 9/201337
which imposed the environmental stamp as a tax liability which is made to the
Environment Fund budget as an income and is used by the Environment Fund Administration
to finance programs and projects for environmental protection, does not harm the right to a
healthy environment. The constitutional court considered that the measures taken by the
legislator in this context had in view the fulfillment of the obligation stipulated by the
34 Lucretia Dogaru, Protecția dreptului la un mediu sănătos în jurisprudența CEDO, in the Journal "Juridical
Current", no. 4/2011, pp.137-144. 35Mircea Criste,Le controle de conventionalite: l'ultime frontiere, in „Curentul Juridic‖Journal, no. 1/2016, pp.
43-55; Ionița Cochințu, Dreptul și obligația Curții Constituționale de a interpreta un text constituțional, in Ionița Cochințu, Marian Enache (coord.), In memoriam Ioan Vida, Hamangiu Publishing House, Bucharest, 2017, p.
133. 36 Petrică Truşcă, Andrada Truşcă Trandafir, Dreptul fundamantal la un mediu sănătos în jurisprudența CEDO,
the Transylvanian Journal of Administrative Sciences, no. 1(23)/2009, p. 118. 37 G.E.O. no. 9/2013 on the environmental schedule for motor vehicles, published in the Official Journal of
Romania no. 119 of 4 March 2013.
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89 Section: Social Sciences
respective constitutional norm to take all necessary measures against the polluting actions and
activities that affect the ecological balance38
.
Also, in the view of the Constitutional Court, considering the provisions of Article 35
para. 2 of the Fundamental Law, the provisions of Article 17 para. 3 and 4 of G.E.O. no.
195/2005 are also included. These provisions impose sanctions on the economic operator for
non-compliance with the obligations established by the environmental permit, the
environmental agreement or the integrated environmental permit consisting initially in the
suspension and subsequently in the annulment of these acts (provisions which have been the
object of several constitutional challenges39
).
The Court also gave shape to the scope of the environmental protection tasks provided
in Article 44 para. 7 of the Constitution, considering that the limitation of the exercise of the
right of ownership imposed by Article 71 of the G.E.O. no. 195/200540
on environmental
protection also has a social and moral justification, since the rigorous compliance with these
norms is a major objective, the protection of the environment, and therefore of the existing
green space, being in a direct link with the public health level, which establishes a value of
national interest41
.
By Decision no. 337/2011 the Constitutional Court has stated that the State, in
exercising the obligations imposed by Article 35 of the Constitution may establish rules
according to which ―activities with a possible significant impact on the environment can take
place only on the basis of the integrated environment permit/authorization, referring to the
already existing activities, which are in progress (upon the entry into force of the legal text –
our note) and the ones that will soon start‖, featuring in fact, actual measures that allow
assessment of the ―potential danger they might pose to public hygiene and health or to the
environment‖42
. On this aspect, we also consider that the author of the constitutional
challenge wrongly invoked the unconstitutionality of the challenged text (which imposes the
obligation to obtain the authorization for the first category of activities, which started before
its establishment by law) on the constitutional provisions concerning the right to health
protection and the right to a healthy environment, a stronger argument being that of the
violation of the principle of non-retroactivity of the law provided in Article 15 para. 2 of the
Constitution of Romania, republished.
In conclusion, in the international and European context outlined quite clearly and in
the economic-social and cultural evolution context manifested throughout the 20th century and
the beginning of the 21st century, marked by worrying global phenomena, the right to a
healthy and environmentally balanced environment could only be imposed, as well as at the
constitutional level. Fundamental law, with a dual legal nature, subjective law and at the same
time a fundamental duty, and a profound and complex content, it enjoys a substantial
legislative consecration. To avoid remaining a simple desideratum, we appreciate the need for
38 Decision of the Constitutional Court no. 645 of 11 November 2014, published in the Official Journal of
Romania no. 43 of 19 January 2015; Decision of the Constitutional Court no. 94 of 2 March 2015, published in
the Official Journal of Romania no. 318 10 May 2015; Decision of the Constitutional Court no. 18 of 9 March
2015, published in the Official Journal of Romania on 31 May 2015. 39 Decision of the Constitutional Court no. 92 of 3 March 2015, published in the Official Journal of Romania no.
318 10 May 2015; Decision of the Constitutional Court no. 774 of 18 December 2014, published in the Official
Journal of Romania no. 124 of 18 February 2015. 40 According to which ―the change of the destination of lands set as green spaces and/or provided as such in the urbanism documentation, the reduction of their area or their removal is prohibited, irrespective of their legal
regime‖. 41 Decision of the Constitutional Court no. 1.118 of 8 September 2011, published in the Official Journal of
Romania no. 710 of 7 October 2010. 42 Decision of the Constitutional Court no. 337 of 10.03.2011, published in the Official Journal of Romania no.
364 of 25 May 2011.
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90 Section: Social Sciences
a concerted effort, both from the state (actually from the states) and from individuals
(individually or collectively).
BIBLIOGRAPHY
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