May 1, 2021
From Kedistan
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You won’t find any articles in the Kedistan archives on the Kobanê demonstrations, so called by the Kurdish movement, but not only. The online magazine only came into existence a few weeks following the events.

But those days are known from everyone, when in Syria, the coalition of Western powers  cooked up the good old recipe used in Afghanistan, which is to say that of using a secondary enemy against the one considered as the main one,  the “bearded ones” against the “reds”. This time, the designated enemy was Bachar, yesterday’s former ally, held in contempt following a certain Arab Spring. With the United States leading the way – barely out of the total destabilization of the region with the war in Irak,  (also resting on a pseudo Iraki power playing on religious divisions),  they threw themselves into assistance to anti-Assad groups that were already gangrened by Jihadist factions that were confiscating the social and political uprising of 2011.

ISIS proclaimed its Califate in June 2014, when this political strategy was in full swing, and while Turkey, a NATO member, was garnering side benefits,   and anticipating returns on forthcoming investments in the Syrian zones under occupation. Under these conditions, the ISIS attack against Kobanê, received more than a wait-and-see approach, resting as it did on the strategy of the Western powers. For the first time, Kobanê revealed   the failure of a political and military strategy directed from the outside, one for which the Kurdish populations were already paying a heavy price. The town, this time martyred in 2015, would become the symbol  of a possible resistance, for all the world to see, and would put an end to this strategy of unnatural alliances, except for Turkey who continued with practices it already applied domestically.

The fact that the Kurdish movement in Turkey raised the alarm on what was playing out then, and not only in terms of humanitarian aid,  touched the entirety of the opposition to the regime, its Kemalist segment as well as its more dynamic and democratic portion. In fact, it was an alarm concerning the instrumentalization of Jihadist forces against possible democratic advances in Turkey itself, and the will to consolidate power based on a war strategy. This is how and why the HDP and the social opposition movement centered their policy on Peace.

Thus,  it is most useful to understand how, with this trial against the HDP, using Kobanê as a pretext, the Turkish regime based on the AKP/MHP tandem, wishes to erase the evidence of its total complicitness with Jihadism, by reversing the accusation on violence and war, in order to incriminate the opposition’s policies and contribute to the liquidation of the HDP.

In passing, one can also underline what meaning the word “justice” still conveys in Turkey: that of a theater maintained  as a façade, so as not to break the structure of treaties of cooperation, but one where everything unfolds according to the orders of those in power.

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An important interview conducted by Selman Güzelyüz with Kazım Bayraktar, one of the defense lawyers in the trial, for the Mesopotamia Agency and published in Turkish on April 28 2021.

Me. Kazım Bayraktar : “The autopsy reports would point to the author”

The first hearing of the “Kobanê Trial” on April 26 2021, introduced a new dimension in the relentless attacks against Kurdish policies in Turkey. The trial during which 108 political women and men, 28 of which are already detained, is based on actions taken in Kobanê, in response to attacks by ISIS. The reactive nature of these actions is a known fact for public opinion across the world.

Based on documents and information figuring in the file of the attacks committed by ISIS, Kazım Bayraktar, one of the lawyers at the trial, states that those in power are attempting to hide the truth. Kazım Bayraktar, who is also the lawyer for the victims of these attacks, states that the Kobanê Trial is not limited to Kurdish policies, but is also of concern for all of the opposition.

We spoke to Kazım Bayraktar about the Kobanê Trial. He has been in practice since the corridors of the State Security Tribunals following the military coup d’Etat on September 12 1980, and now in the penal tribunals of the AKP era.

During the audience where the lawyers left the hearing room, due process was not applied, the accused were not given the opportunity to speak, and the act of accusation was read in the absence of the defense. Why was this trial delayed for a week, when it was supposed to run for a month?

We came prepared to the hearing. The tribunal sensed our preparation, they also came prepared. In speaking of preparation, I mean “who will have the upper hand psychologically in this affair.” 

The hearing began with the recording of statements concerning the persons involved in the matter. We requested that our clients Selahattin Demirtaş and Figen Yüksekdağ be allowed to speak prior to the reading of the act of accusation, but the court broke with judiciary procedure and moved directly to the reading of the act of accusation.

We filed a statement regarding the fact that our friends in the legal profession were kept from entering the hearing room, and that this was a break in procedure. The situation of our colleagues who could not enter the room was finally entered in the proceedings. But then, the audio recordings of our colleagues and clients were not entered into the records of the SEGBIS the official “video and audio information system”. Seeing this, we left the trial as a sign of protest.

After a while, the tribunal realized what they were doing. When they guessed where this was going, they backed down. “Your lawyers may return”, they said. When we came back to enter the room, the police tried to block the way by closing the door. When the lawyers had to force their way in, the President of the tribunal had to say “let them enter”.

Then, Selahattin Demirtaş and Figen Yüksekdağ wished to file an argumented recusation of the judge at the hearing.1

But the tribunal, which normally must record such a request, did not allow them to express it. The lawyers attempted to transmit this  recusation request, but they were not authorized to do so either. The tribunal pursued the hearing by reading the act of accusation. As a protest against these practices disrespectif of procedures, we again left the room.

During this entire sequence, the tribunal exercised obstruction, cutting the sound on the SEGBIS recordings of our clients, when it so decided. The trial went on in this manner until night time.

Finally, the tribunal decided to reject the request of recusation from the lawyers, without their being able to state it. It then claimed it wished to receive this request from our clients, but they declared that, being kept in ignorance of what was going on at the hearing, they wished to transmit the refusal in writing. The tribunal had to adjourn the hearing, being forced to obtain the motives for the recusation request.

• Let’s get back to the “psychological upper hand”…

The tribunal failed to obtain the psychological ascendency it wished to establish. The number of participating lawyers was very high. Serious reactions were demonstrated in the hall with protests and applause. Faced with this, the tribunal had to adjourn the hearing, because it wanted to develop a counter-offensive. What the tribunal wished to do was to keep Selahattin Demirtaş and Figen Yüksekdağ from laying out the judicial and political background to this case. Because on this first day of the hearing,   words from the two Co-Presidents would exert an influence on the public. They wished to avoid that. They did so by shutting down the SEGBIS recordings. The possibility of putting an end to the matter within the planned time period thus found itself extremely weakened.

• What do you expect from the second hearing of this Kobanê trial?

Next Monday will be the final day for the request for the recusation of a judge. If there is a hearing, when this request is presented, the judge must send it to a higher jurisdiction. The delegation of judges will then adjourn the hearing again.

• Concerning the nature of the case, how do think other hearings will play out?

This trial is an illegitimate one. From its content to the way it was prepared, total illegality prevailed. On the basis of article 90 of the Turkish Constitution and the decision of the European Human Rights Court (CEDH), which is a binding one for Turkey, maintaining the parties concerned in prison is no longer a detention but an imprisonment. Against those remaining in detention, a crime of “illegal detention” is being committed, which could serve as a motive to open a trial. Thus we are in the presence of judges and prosecutors being led into criminal conduct.

During the period of alliance between the AKP and Fethullah Gülen, there were judges and prosecutors who committed illegal acts, such as the Ergenekon Trial. The judges, the prosecutors, the police officers and agents who worked in this manner at the time are now in prison for the crimes to which they were led. The current ones are also being led into illegality. We will attempt to express this. We will tell them: “you are doing something that will lead to your judgment.” Moreover, we will adopt an actively defensive judicial position, even one of counter-attack. We will not be the ones being judged, but those pronouncing the accusation. We will accuse those who played a role in the unfolding of events, from top to bottom. They say “Kobanê”, we will say “ISIS”.

• The delegation of judges obtained a special status with the nomination of a second delegation to the 22nd Tribunal for heavy penal cases in  Ankara, given the possibility of handling only the Kobanê case. How should we understand this practice? 

This violates the “principle of natural judgment” in Law with judges and prosecutors being named on the basis of the case.  There is also the fact that certain prosecutors are removed from an ongoing case and replaced by others. As pertains to this case, we understood when the prosecutor was replaced that the prosecutor that was named was clearly identified as MHP, Nationalist Action Party. Such nominations are incompatible with the principle of “natural judgment” in order to determine the fate of the accused in a trial. And that is only a small part of the matter…

There is also the bigger part, the one that has been consolidated over the past years. In any event, judiciary power in Turkey, from the Supreme Court to the local tribunal is totally removed from the principle of natural judgment.

In other words, justice is devised in such a way that anyone, down to the last court clerk, may be removed during the night and replaced on the following day. The laws were rewritten to allow this. This happened with the constitutional modification in 2010, renewed to this day. It was not difficult to proceed to such a nomination since the judicial power was already entirely dependent on those in power.

The delegation of judges currently handling this case has other business to attend to. There are several trials in this Court. This committee will pursue predetermined work in order to continue examining this case. Fresh staff was nominated as reinforcement. Those judges will handle the other matters before this Court. The current delegation will pursue this trial in the framework in which it is imprisoned and its sole responsibility will be the handling of this case. This is one of those situations that violates the principle of natural judgement. By Law, a judge cannot attend solely to one case.

• Do you mention this new practice?

A new practice, only in that it appears in the light of day. Which is to say, a delegation of judges given a sole task. Similar practices occurred during the period of the State Security Court (DGM)2 as follows: some cases were transmitted to the State Security Court. There was no question of treating only some cases, but since other files were not communicated to it, its tasks were lightened and its work could be concentrated on a specific trial.

These kinds of tactics were used at the time. But now, when an important political operation is planned, the magistrates in exercise at the time when it will be held, are chosen beforehand and specifically for it. There is a phenomenon of nomination of certain judges and prosecutors, meant to fill certain objectives. This has become a common practice, but the nomination of a delegation of judges to a sole trial, as in this trial, is still a rare occurrence.

• Many things have been said and written concerning the statement of accusation and various names implicated in the matter at hand. Looking at all these developments, what name whould we ascribe to this case?

We could also call it the conspirationist trial, but the whole issue  does not  have the caracteristics of a “trial” in the true meaning of the word. It is simply a bad trial, used as an intrument. This matter appears as the product of a strategy of liquidation of Kurdish politics, one that is increasing. In other words, this trial aims at pushing back, or even progressively eliminating positions the Kurdish political movement had managed to achieve thus far.  It is also conducted in order to paralyze and destroy the Peoples’ Democratic Party (HDP) in all areas. Which is to say, on the one side, the trial for the dissolution of the HDP is ongoing, but on the other, as this trial will lead to a separate political result, and that there is still no common thinking in this matter on the part of the partners sharing power, the Kobanê Trial is the most central procedure used in order to completely disrupt the HDP.

• Does the trial then aim the liquidation of the Kurdish political movement?

This trial does not only take aim on the Kurds. It also signifies the will to forbid political opposition. It is a trial that contains a message according to which the policy of the Kurdish movement, and the other leftist notions associated with the Kurdish movement in one way or another, will no longer be authorized to live in this system. Of course, when we examine the content of the case, there are a lot of acrobatics involved,  from false evidence to falsifications in order to achieve this end…

And when examined under this angle, it is truly a matter of plotting. Because the HDP does not present itself as a plain Kurdish movement. During the elections of June 7 2015, and in the following period, it began to obtain the votes in the Western regions of Turkey and among other leftist tendencies. Everyone, and especially the government, saw that the HDP was taking on greater importance and becoming a democratic party for all of Turkey.  It also began creating a dynamic aimed at insuring a large united front against fascism. In order to eliminate this danger, the government criminalizes the HDP and wishes to destroy it, dividing and purging all of its allies and supporters in whatever zones and spaces they may occupy.

I will speak based on previous years. In the politico-economic sense, it is a question of centralization, aimed at managing all the State institutions, the judiciary, the executive and the legislative from a single center. The Kurdish political movement, the HDP and other revolutionary leftist parties, the working class, the popular classes and women are obstacles to this centralization process. Thus there is a surge toward liquidation of all formations and organizations, despite they’re being legal. This is a form of fascist dictatorship. In other words, as we move toward 2023, fascism will go on further consolidating what it is currently doing, centralizing, eliminating all segments of the opposition to a dictatorship. This trial is in fact one of the steps in this direction.

• What  is the problem for those directing the centralization of which you speak, when dealing with Kobanê?

One of the main problems is that, when the popular movement began in Syria, Occicental imperalists developed certain plans and attempted to maintain a position in Syria by arming salafist gangs, a policy they had previously used in the Middle-East and in Asia. As for the partners of those in power, they also acted jointly with the West in using gangs, estimating their potential share in the spoils. But the calculations did not match up with the market price. Later, the Western strategy suggested some arrangements, but the AKP held on to the salafist gangs, in particular, the Islamic State, Al-Qaïda and other similar gangs in order to use them in liquidating le Kurdish movement in Syria. At the same time as the El was moving and multiplying its attacks against Kobanê, the AKP reached  such a close cooperation with the gangs called El and ASL that only the Kurdish movement stood up to it in this process. Luckily, they were beaten by the Kurdish movement. Of course, there was a price to pay for this defeat. They then used a number of tactics to charge the cost to the Kurdish movement. One of which were the demonstrations in Kobanê: the government used both legitimate and illegitimate means during the protests, causing the death of many people. Those in power are directly responsible for these deaths.

But in order to reverse this perception and the losses associated with it, those in power considered it appropriate to accuse the Kurdish movement, the Kurdish politicians and the HDP in a matter where it was the guilty party itself. In a way, it used this business as an instrument to make the HDP pay for its own liquidation and for the massacres of Kobanê. The Kobanê Affair is used as a tool to purge the opposition. But we will lift the veil, we will clearly reveal the alliance between the AKP, the Islamic State and the salafist gangs, as well as the aim of covering the massacres it committed in Turkey.

• You are also the lawyer in the matter of the many attacks perpetrated by ISIS in Turkey. Tell us your conclusion in light of these cases?

The demonstrations of October 6th and 8th in Kobanê are used as an excuse. There is a before and there is an after. Examining the elections of June 7th and November 1st 2015, we see that the AKP and its partners opened the way for the Islamic State and similar salafist gangs to structure Turkey. During the trials of the attack on the Ankara station on October 10 2015, the Suruç attack on July 21 2015 and the attack in Diyarbakır on June 5 2015 (during an HDP electoral meeting) we came across such documents and files which showed us that the process around the demonstrations in Kobanê was one in which the alliance of the center of power in Turkey with the Islamic State was realized in the field.

• Can you give us a telling example you encounter in the files?

On August 9 2012, leaders of the security and intelligence agencies in Antep signed a document to trace some names linked to al-Qaïda. The document clearly stipulates the names of the persons under surveillance. These persons will then commit attacks. Surveillance of these people had thus been decided, a statement was published. In conformity with the protocole, a inquest file N° 44540 for the year 2012 was in preparation. The surveillance runs until 2014 for these individuals who will then appear in an inquest file as members of ISIS coming from Al-Qaïda. In 2014-2015, governmental policies do not keep persons under surveillance from creating associations and foundations, opening bank accounts… We also note that such associative work is done by those who will then perpetrate the attacks. The Tribunal has over 80 surveillance decisions.

When we reach 2014-2015, in examining the file, we realized that a number of persons, beginning with Ilham Ballı were under surveillance par the office of Ankara’s general prosecutor. In principle, all their conversations were recorded. Normally, there should be an ordinance by the tribunal for the recording of their conversations. But, on February 2015, the office of Ankara’s general prosecutor, for an unknown reason, annuls the decision to record Ilham Ballı’s conversations and opts for the destruction of those recordings already carried out. Later, it turned out that Ilham Ballı had conversations concerning the organization of the road we call the “Jihadist highway” allowing those who perpetrated the attacks to come and go in Turkey. He did this, with constant phone calls to certain members of ISIS present in Turkey and the setting up of meeting places.

Later, media reported that Ilham Ballı was in contact with Turkish intelligence (MIT).  Certain events that developed in the background also confirm this.

In looking at all this, as we were working toward the elections at the end of 2014 and in 2015, demonstrations occurred in Kobanê and when we examine the files of that period, we see that the ISIS gangs are under surveillance but with a different policy. What is this policy. “Keep them under surveillance, record them but don’t touch them.” They are not touched. From time to time, they conduct ostentatious and exaggerated operations, but there are no operations aimed at neutralizing these persons. As of the beginning of 2015, these people develop cellular structures in Antep and prepare materials and explosives. With the approach of the June 7 elections, during the period of conflict between the opposition and those in power around Kobanê, cooperation of the government (with these person) keeps on improving.

We see in the files of the pre-election period, how the policy using ISIS as a means to create chaos and fear in Turkey was conducted, step by step. It began with the attack on June 5. Demirtaş is on the podium, the HDP is holding its meeting and the killer sent by Ilham Ballı commits the attack in Diyarbakır. This is not a coincidence. We now understand, based on the documents on file, that this killer named Orhan Gönder perpetrated the attack under State surveillance.

The killers who prepared the attack in Ankara on October 10 were also tracked during their purchase of nitrate of ammonium. The office of the governor of Ankara ordered the suppression of all border controls during the night when the “human bombs” arrived in Ankara. Kobanê is well and truly the process through which the relationship between the Islamic State and the centers of power in Turkey developed very clearly. These files should not be examined independently. The main objective in using the term “Kobanê” for the inquests and arrests aimed at eliminating the opposition is to cover and reverse these crimes.

• Political leaders of the HDP are held guilty of the death of 37 persons but the file did not even include reports from the medical bureau concerning the dead. The lawyers said they had no connection to the accusations. Is there sufficient evidence in the Kobanê file to direct the accusation of “intentional attempted murder” which carries heavy sentencing, toward a person or an institution?

In the case of a trial for acts such as murders, wounds or destruction of goods – which can be of a judiciary nature – the existence of a causal relationship between the author and the evidence must be established. Evidence of guilt, evidence of acts committed must be revealed. Vague and varying declarations by witnesses – and let’s not even mention “secret witnesses” 3 are not sufficient. In the case of a murder, in the presentce of two, three statements by witnesses, one cannot even say “this person committed this murder” or yet again “this murder was committed in such and such a way.” This is not how the judicial process works. Who killed so many people? The State does not conduct an inquiry on this question. It does nothing other than collect material proof of deaths and only those that it finds convenient. And even this, it does only halfway. There is no autopsy report. Perhaps in these autopsy reports the vehicles that caused the deaths might point toward the State. Who knows, perhaps a bullet removed from a victim’s body came from a policeman’s weapon… None of this was examined.  The autopsy reports would point to the author. They attempt to avoid this detection. While avoiding the identification of the author, they state: “The leaders of the HDP called for the demonstration, they are the ones who incited the violence.” 

In such cases, there is a “crime of incitement” but the instigator must lead to action on the part of the author. There has to exist a relationship between the instigator and the author. You must expose this relationship. Demirtaş, the director of HDP or the executive Committee took a decision and called for a protest against the attacks by ISIS. You say: “They are the instigators.” This is a political accusation but, in Law, you cannot do this. When you attempt to establish the causal link in reality, you base this on evidence. You go all the way to the Ministry of the Interior because they are the ones charged with instituting the security exercised by the Ministry of the Interior and the security and intelligence agencies.

What were their positions during these events? Who did what and where. This must be examined. And it is precisely in order not to investigate this that they are prepared to submit a crude accusation, containing vague and deformed charges. This has nothing to do with a judiciary process. These are fantasies. If you look closely, 27 of the dead were members of the HDP. HDP members killed one another?

• It was announced that in the future, the Kobanê trial will be conducted with secret witnesses. The act of accusation includes several declarations by secret or identified witnesses, yet contradictions have appeared in the content of the declarations according to how they were recorded…

If we wish to speak about an equitable and democratic trial, there can be no question of a concept such as a “secret witness”. If you believe his or her testimony may place the  person in danger, you put the person under protection. Above all, the witness must be interrogated by both parties. Secondly, when the witnesses make their statements, they must describe the event, the time and the location, and not deliver vague comments repeating hearsay from this one or that one, what they heard, what they read…If you look at the witness statements in this file, you find nothing of the kind. The witnesses are not at the location where the events take place.They simply make accusations, such as “Demirtaş went there, he received instructions, he came back.” So we ask “were you with him? Where did he do this? Who else was there at the time? Do you have a date, or a time?” None of that exists.

• Originally, to what to you link this methods and these practices of  the “secret witness” ?

This is nothing new in Turkish history. This practice already existed in the State Security Tribunals during the period of the military coup d’état of September 12 1980. The term in those days was not “secret witness” but “confession witness” or “repenting witness”. Today, it has been legitimized. The practice has become so common that it is constantly used against those who oppose those in power, including in the Ergenekon affair. In the series of alliances with the AKP, it is also used in the trials involving the Gülen Brotherhood. They also used these methods against one another, like a language we consider dirty and illegitimate. A secret witness is not a proof, he is used in trials filled with conspiracys and all kinds of fabrications. In fact, it means: “I can’t find any material proof, but I want to condemn you.” Divulging an absence of concrete evidence is the confirmation of the absence of the possibility of accusations. It indicates that the accusations cannot be made against the HDP or the persons identified as the accused.

• The file contains many parts, from the MIT to the Prime Minister’s Cabinet, from the Ministry of Justice to that of the Ministry of the Interior. During the protests, the Prime Minister and the Minister of the Interior at the the time, were in contact with the HDP. Demirtaş explained this before the 19th Penal Court where he is under trial. The HDP Deputy Sırrı Süreyya Önder also stated this in a declration to the prosecutor’s office. If there is a trial in this investigation, why are the members of the HDP designated as “suspects” If there is a crime, is there not also a responsiblity of those who were in contact with the “criminals”? 

Undoubtedly. That said, the AKP’s efforts so that the inquest and trials against the HDP be at its own initiative have a reason. As for the contact of the HDP with Qandil and the PKK during the resolution process 4 of which Demirtaş is precisely accused in that file, it appears that the AKP proceeds in its own way, and the MHP otherwise… Concerning these trials, of course, they experience tensions between themselves. And we see this very clearly in the fact, the one secretly accused in this trials is truly Erdoğan. If declarations, meetings conducted during the resolution process are brought up in the act of accusation as crimes, well, they are established in the documents. Everything took place with the approval of the institutions and the authorities chosen by the government. They were aware of it all. These talks had to take place so that tactics established during the resolution process could move forward.

The talks between Qandil and Demirtaş and the other deputies and mandated ones are also in evidence. They all occur with authorizations. In fact, so as to avoid this policy constituting a crime, law n° 6551 was promulgated. But when we look at it now, the accusations in these trials, and some of the requests to revoke the mandate of elected members, contain types of accusations that may cause frictions between the MHP and the AKP.

• The trial aimed at the dissolution of the HDP, opened before the Constituional Court by Bekir Şahin, a member of the AKP, named   prosecutor of the Republic before the Supreme Court on June 5 2020 by Erdoğan in person, but it was rejected by the members of the Constitutional Tribunal, who are also named by the President, because “the relationship was not established between the actions and the fact that the HDP became the kernel of the actions.” Some people interpreted this as an AKP-MHP conflict. What was the objective, in your opinion?

In fact, both forces agreed on the liquidation of Kurdish policy and that of the HDP. But there are differences depending on specific political interests, timing, way of proceeding and up to what point…During these last months, Bahçeli [President of the MHP] has not ceased howling for the dissolution of the HDP. He has transformed this demand into a severe injunction. The AKP needs the MHP and vice-versa. But there are conflicting interest in this matter of needs.

I think the AKP told itself “let’s go about the dissolution for the HDP through judiciary means” and brought the matter up to the Constitutional Court. But there are tactics within the tactics…By opening this trial, the AKP wanted to cool down the MHP’s fire. However, the constitutional court reporter, and the other members, unanimously decided to reject the act of accusation. I consider this a diversion motivated by the political context. On the one hand, the AKP want to be in the MHP’s good graces, but on the other hand, it says “What can I do about it? The accusation was sent”. So the AKP attempts to stretch out the process while the MHP insists on moving it along.

The scuffle constinues… But there is an important point in the reasons for rejecting the act of accusation: it points to the causality link. As we were saying earlier, there is a motive for refusing it, that signals the necessity of establishing a causal link between the cases of deaths, wounds and other prejudices and the policy, decisions and declarations of the HDP, and to explain them. In fact, this justification is exactly what the Higher Chamber of the CEDH underlines.

The decision is both in conformity with this and becomes an excuse to slow down the process. I think it is quite difficult for a new attempt to be prepared. Because with this justification, there will be evidence that a decision of dissolution cannot be based on the same motives.

But the political context evolves very quickly in Turkey. It is impossible to surmise what it will be in the coming periods, it would be unreasonable to attempt a pronouncement.

Note from Kedistan

The next hearing of the Kobanê Trial was announced by the tribunal for May 3 2021.


Translation by Renée Lucie Bourges
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Source: Kedistan.net