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ACCESS TOWARDS JUSTICE AND COMPENSATORY JURISPRUDENCE: EVALUATION OVER COMPREHENSIVE LEGISLATION

Paper Details Paper Code: RP-CLA-V2-08 Category: Research Paper Date of Submission for First Review: March 28, 2022 Date of Acceptance: July 6, 2022 Citation: Garima Jargar, “Access towards Justice and Compensatory Jurisprudence Evaluation over Comprehensive Legislation”, 2, AIJACLA, 101, 101-112 (2022). Author Details: Garima Jargar, 5th Year Student, Maharashtra National Law University, Nagpur


Abstract Wide consensus over the fundamental protective rights and reparative rights which was solace for the trending criminal justiciable policies which will be exhibit as a victim-centric perspective under the exponential expansion norms. The sapling over the sufferer's right is been germinated within the protection of the individual as well as general group reforms, by upholding the state against the intentional motive around the infringement of the basic and foremost sources by the unscrupulous person. The main purpose and objective are to seek the culprit with the accordance of due process enclosed by law which can provide with the measure that can be amended and right which should be preserved or safeguarded. As the carriage and burden of the justice are more likely to be misconceived within the halt of signatures on the court decision but the verifiable destination or vindication always lies at the specified lap of the victim. There were much numerous judgments given for the justifiable act towards the dignity as well as liberty of the victim but though as a result State authority fails to reimburse the loss of the victim. Keywords: Material Damages; Criminal Justice; Rehabilitation; and Victim


INTRODUCTION

Pleading for justice and efficient ruling– the law should not sit or perform limply, while those who are defying from the offences should go free as well as those who seek towards the protection over losing hope” within the framework related to the justice which has been largely obliviously which constitute among the true vindication regarding the victim act. Over the carriage ambit of equality that is often misconceived towards the halt by assisting at the signature by delivering the judgment however among the true handled destination which lies at the lap as well as shoulder of the victims. Preservation of the sanctity of justiciable act which can be prerogative conduct within the state boundary for supporting the pillars related to the justice. The historical jurisprudence under Article 21 of the Indian Constitution was later gained within the momentum through the turn of the decades and presently extends the subject matter of rehabilitating the victim or her/his family.[1]

Even if the event or conduct which has been performed headed under the machinery level of justice which ultimately fails to recognize the main accused or fall short within the collection and presentation of the requisite evidence as well as proof for ensuring the appropriate tenure of sentencing related to the guilty or innocence over the duty of compensation remains. Restitution over the employed punitive measures that were held up within the throughout the history as the ancient societies which will never be held up under the conceptual separation among the realm regarding the civil as well as criminal law but due to the mechanical requirement the offender which has done the offence towards the reimbursement of the victim or the family for any type of loss that can cause for the commission of a crime. However, the foremost incorporation for such type of restitution was eventually misplaced since there were acts and provision which was enacted to protect the offenders from any nature of violent retaliation from the side of victim or imposed through the communities as the opposed matter towards the compensation of the victim.[2]

Jurisprudence related to the victimology has been excessively in debate stating that from where to place or put the ball of the responsibility – whether this particular accountability of people towards state ends merely just by registering a case, completing all the legal formalities, conducting an investigation, putting all the sources in work procedure, initiating the prosecution, and lastly sentencing the suspect for the conduct or whether apart from the duties as well as pursuing the steps, the state and government has a further level responsibilities towards the victim. Subsequently, there is a fledge dilemma of whether the court can be held up for bearing the legally bounded duty towards the award compensation irrespective of the conviction. This was specifically excused within the systematic failures enacting over the blotchy investigation which should be taken by the police authorities, poor efforts from the side of the prosecution, and questionable integrity as well as faith among those who are involved in this particular process.[3]

In the adversarial ruling and democratic system like India, usually, the criminal cases are held up as a contest among the accused – who has committed the crime and the state – within which the case is filed against the situation. Whenever there is any type of crime or commission of viable offence takes place the culprit is usually apprehended from the conduct either by tried, punishing, even released/relaxed from the probation in few circumstances or by absolved, after completion of the formalities although the accused is found guilty of the offence, here the victim remain victim – there is no change in this particular position. Therefore, there is an urgent need for the criteria to fulfil the requirement related to criminal justice that can take initiatives more than just by giving punishment to the criminals or by upholding up as guilty. To restore the constitutional rights and mitigate the following damages which have been performed by the victims that have suffered mentally, physically, psychologically, socially, and financially, due to all the procedural matter as a result the crime didn’t stop from happening.[4]


HISTORICAL DEVELOPMENT

With time from the British rule to the contemporary era which states that the principles of the jurisprudence of law have gradually or severely demarcated the allocation of the defined resources towards the punishment within the case of civil based tort and criminal offences/conduct. The compensation or the remedial relief is always put under the rehabilitation and welfare of the victims of specified offence/violence that usually includes murder, rape, conspiracy, and many non-bailable offences that are governed by the statutory provision within the section 357A of the Code of Criminal Procedure which elaborately states that every states or government should be in co-ordination respective towards the central government which shall be prepared for the varied level scheme for providing the basic amount of funds that will be held up for the compensation towards the sufferer family. Initiatives and compensation accomplished were subsequently incorporated as the victim’s fundamental as well as primary right in the civil law that can ultimately oppose the remedies in the particulate case of crime.[5]

In the field of criminal law – getting rid of the burden related to the compensation towards the established initiative, efforts, and rehabilitate victims also their families since the actual position of the defined law was headed under the criminal forms of justice which were bifurcated either in a reformative manner or in a retributive way for sake of establishing the purpose towards the offenders, as it might be opposed for being in the stages of rehabilitative concerning the victims. Providing with protection, security, rights, and obligation to the victim of the defined crime had become a matter of fact throughout the nations within which the mandate conditions which is still unchanged in all different, as well as various territories, is there is no better or enhancing condition for diminishing concern related to the crime. The functionary issues which were enacted related to the compensation right are straightforwardly served towards the right of the suffered population within the circumstances that something wrongful act or injuries have taken place in the personal property or with the individual.[6]

The conventional status has been initiated from the recent decades that undergo a notable dynamic change as the societies though the world has increasingly felt population that might establish legislative measure and the jurisdictional courts alike were proofed neglecting by the act of victims towards the commission of a crime. However, there was a scheme which was enacted based on the restitution of offender towards the victim which is particularly based on the issues of problematic nature because of the imperative for the sufferer regarding the apprehended as well as convicted which was headed as necessary conduct for the victim that can ultimately unable to afford the essential resources, facilities, and sources for the same. Likewise, the scheme also assists the normal general public as well as gives rise to the profitable sources where the victims are subsequently denied the compensation as the offender has been considered as a debtor and ultimately cannot raise the amount of money in the prison.

Moreover, according to the tenure of four decades back then, Justice Krishna Iyer elaborated about the concern which was disclosed as – it is a specified weakness of the Indian jurisprudence that the victim of the crime which happened and the act of distress towards the dependents regarding the sufferer does not specifically attract the attention related to the field of law. Within the defined matter of fact, victim compensation has been still under the position of the vanishing point of the criminal judicature, to avoid that there is a deficiency within the judiciary system that subsequently should mandatorily rectify by the tier of government i.e. legislative. Therefore, to elaborate and know about the consequences all jurists, scholars, penologists, and eminent researchers in all the countries started giving pure as well as focused attention towards the cause/causation of victims in the forms of remedial measures for improving the pillars of the nation.[7]


MEANING, NATURE, AND EVOLUTION: VICTIM AND REMEDIAL RELIEF

Indian legislature and adjudication have never bothered about mentioning the elaborative definition regarding the “Victim of Crime” under any section or provisional matter of law which probably took Indian Judiciary to provide with justice and general form of equality towards the people. Criminal law or jurisprudence behind criminology has always demotivated, drawback, or discouraged about the acts, conduct, and omission of the offences within which it was categorized as the general activity. That can further affect the right in rem as well as the violators doing that subsequently possess punishment and strict sanction or established of rigid law but though the crime rate which was set as a graphical representation was not falling or diminishing at all, moreover state and government was regularly questing towards the preservation-related to the social solidarity and peace within the boundaries of the society.[8] The etymological phrase which will encompass the condition – Anyone who is been in the part of a crime or any type of offence suffering from any type of physical, emotional, psychological, and financial drain or harm as the direct outcome of the causation of crime. Under United Nations, General Assembly Declaration of the Basic Principles related to Justice for Victim (Sufferer) and towards the Abusing Power which was adopted in the year 1985 – which disclose the exhaustive terminology regarding the victims and Prosecution, headed under Article 1 & 2.[9]

Article 1 of the act elaborates on the terminology “victims” that ultimately means – a person who is in the form of individually or collectively have been suffering or suffered any type of harm or injuries, including physical, mental disturbance, emotional drain, economical loss, or substantive impairment related to fundamental rights, through the acts, obligation or omission within which the violative act towards the criminal law is termed under the operative towards the member states, the inclusion of the provisional law that are proscribing over the abusive power.

Here Article 2 states that – a specified person can be taken into consideration of a victim under the declaration regardless of the question which arose that whether the perpetrator is identifiable, apprehended, prosecuted by the authorities, or been convicted under the familial relationship among the perpetrator and victim.[10]

Nevertheless, within the past few decades, there have been witnessed ground-breaking measures within the approach related to the legislative system regarding the nationally as well as internationally. Through the compensation which has been awarded in the public law remedy which was headed under Article 21 as in the year of 1983, the apex court was identified and recognized as the right towards the petitioner towards the seek of justice. The revolution of the conceptual welfare can be traced within both perspective historically subject matter as well as theoretically way, here it is determined under historical way then the concept of victimology will be considered as crude sense which was not within the part of Hammurabi’s code bit though also was in the existence towards developed matter in the ambit of the ancient Greek state. The remedial relief is the basic part of rehabilitation towards the sufferer section, and so far, almost 24 states, as well as 7 Union territories, have accomplished or established the formulae related to the victim compensation scheme.[11]

Within the basic formulation of the literature two questions would be arising by the jurisdictional: first is, can specified victims of the crime would get any type of compensation within the jurisdictional boundaries of the India and second is under what criterion can be taken into the consideration of who is the prime victim of the case. The answer to the first question can be said as – yes the victim who is been headed under the suffering point of the offence will get some amount of compensation if he/she is a resident of India, but where there should be a proper procedure as well as process which should be followed with the primary needs and resources.[12]

Hereby an elaborative answer to the second question is that any person, individual, group, communities, or entity who have suffered or have been made suffering harm, injuries (mentally, emotionally, financially, psychologically, and in any perspective) or towards the loss due to the illegality procedure or activities of others. The relative harm or grievous injuries that may be economical, societal, and cultural or ethically, thus the defined person who was headed under the suffered any type of harm because of the violative or abusive act concerning criminal law is termed a victim. Specially a person or individual who will be considered as the victim even whenever the offender is not set as identified or prosecuted within that the victim also includes an individual which has suffered harm as an outcome for assisting or guiding a victim within the distress or towards the prevention of victimization.[13]


PRIMARY OBJECTIVE AND ELIGIBILITY FOR COMPENSATION SCHEME

The Indian Constitution is set as a boundary for any violative or prohibited activities that are against the law or are not in favour of the upliftment of general people; here the supreme provisional law of the defined land has been enunciated with no proper specific statutory statute for the victims. Part III and IV of the rule books elaborate on the primary fundamental right which should be given to the citizen and another is the directive principles that are given to secure the specified right towards public governance. In many cases which became landmark judgment from the apex court that has repeatedly was under the order that makes compensation or any type of remedial reforms a significant or integral aspect related to the right to life, several judgments are – Bhim Singh v. State Jammu & Kashmir, Manju Bhatia v. N.D.M.C, Paschim Bengal Khet Mazdoor Samity v. State of West Bengal, and People’s Union for Democratic Rights v. the State of Bihar. The foremost objective of the scheme was –

● For support as well as used as a supplement within the existing towards the victim compensation schemes that would be notified by the defined States/Union Territories Statutory Administration.

● For the reduction of disparity and discrimination within the quantum for the compensation amount that will be notified by the varied states as well as union territory related to the victims of similar crimes or criminal offence.

● For enhancement and encouragement regarding the states/ union territories towards the effectively which will be later implemented towards the victim compensation schemes [VCS] that would be subsequently notified by the authorities. Under the legislative provision related to section 357A of the Criminal Procedural Code which ultimately continues for assisting the financial support towards the victims or the suffered from the crime. Various vicious crimes especially all types of offences regarding sexual offences that would implant the trace physically in the body including the judgment of rape, acid attacks, human trafficking, violative or abusive act towards people, and criminal conduct against children or a weaker section.[14]

The victims or the dependent suffrage by satisfying the following perspective that shall be eligible for fulfilling the basic requirement and the receipt related to the remedial relief as well as by providing with the compensation. The basic eligibilities that is provided within the scheme are –

● The sufferer that should not be within the receipt related to the compensation for such type of damages, injuries, harm or loss from the side of Governmental authorities or any kind of various other schemes under the supervision of Central/State Governmental department, for which the suit can be file by the applicant or the victim's dependents by declaring to the intense effect along with the procedures regarding application form.

● The 41st Law Commission report was submitted to the drafting committee in the year 1969, in that it was disclosed that the significance related to the recoverability over the compensation should be mandatorily enforced within the jurisdiction of the civil court by akin towards the public reforms that should be available as a tort. Over the gravity of compensability which was demarcated used “substantial” that can be excluded for the cases wherein the nominal charges are subsequently recoverable.

● Any type of loss, injuries, or damages that are sustained by the sufferer or towards the victim dependents that should have mandatorily caused within the substantial loss to the income as well as earning of the defined family which make the specified matter to embed in a difficult for making both ends of the side to meet without any type of crisis, financial aid measures or any type of required amount of such expenditure that would be headed beyond the means and meets within the field of medical treatment related to the mental as well as physical sort of injury towards the victim of crime.

● Where in the offender which was within the situation where the crime happened if the evidence is not traceable, untraceable, or the circumstance that cannot be headed under-identified, as an outcome the victim may also perform as well as apply for the actual kind of grant towards compensation under the provision of sub-section (4) of the section 357A of the act.[15]

In the year 2009, the central government usually gave direction for establishing every state for preparing the scheme which was imposed with the help of agreement with the guidance of centre scheme for the victim compensation. The foremost or primary agenda of the specified scheme was to provide a minimum amount of funds to the victims or their dependents who have ultimately suffered any type of loss or injuries, as an outcome of the crime there should an option of mandate rehabilitation.[16]


STATUTORY PROVISIONS AND LAW GOVERNANCE – COMPENSATION REFORMS OF VICTIMS IN INDIA

Compensation or any type of remedial reforms has been ordered by the court and jurisdictional authorities within which the compensation can be sought or resolve through the procedural law that would be established by the court or judiciary system. Here the compensation can be awarded in both the form of relief i.e. material and non-material form of damages which will be provided to the victim of the crime.[17] As the material damages have an inclusion of normal fulfil the requirement that is medical expenses, financial support, loss of livelihood, and all kind of daily expenditure, whereas non-material damages are said to be those measure which will be provided to the victim when the offence that happened is vicious as well as grief such as pain, injuries, suffering, harm, mental trauma, and emotionally draining. Mostly in criminal cases, the sufferer can directly apply for the grant of compensation as it has been said as the primary rights and accountabilities towards the people but it is also true that the duties which are upheld by the lawyer are to represent the victim not for sake of applying for compensation relief but for pleading towards justice.[18]

The legislative provision that is required as well as essentials towards the compensation measures to the victims of the specified crime that are usually contained and determined within the section of 357, 357(1), 357(2), 357(3), 357A, 358, 359, and lastly 250 under the act of Code of Criminal Procedure, moreover there were many rights and obligation which are mentioned in the constitution of India which provide an elaborative explanation for a defined provision that provide with certain safeguard and protection towards the victims of crime or any kind of offence within which the act was performed. Article 14 and 21 of the constitution solely support the argument if it is related to the right towards equality and no one or individual can be deprived or prohibited from their set rights likewise personal liberty, dignity, and just/fair treatment that includes an exception according to the system through the procedural established by law.[19]

Victims Compensation as a remedial measure under the code of criminal procedure – wherein the conviction as well as fine within the part of the sentence – wherein an accused which has been headed as proven guilty and the jurisdiction of the court that passes the order which usually contains a fine or reforms of any type of denomination, here the court order such type of remedy or fine over the offence as a part of the payable expense to the victim. This particular fine which is imposed in the accuse are been utilized as compensation to the victim in the following manner –

1. Compensation and remedy for the expenditure incurred during the litigation i.e. 357 1 a – this is considered that the essential relief over the situation wherein the victim of the relative crime should mandatorily get, herein the litigation charges or cost in India is said to be very arbitrary. The lawyers usually charge a hefty amount of fees for fighting the case, prosecution procedure, investigation expense, and lastly commission of the defined case. Getting or pleading for justice at many times subsequently adds a burden towards the expenditure of the victim itself, instead of appealing for getting justice, the sufferer should be trapped in the specified honeycomb for the delivery of justice system and efficiently usage of the judiciary system. However, the court also knows about the facts, and thus the compensate victim should be provided with all the required expenses that will be simultaneously incurred within the duration of the litigation period.

2. Compensatory damages for the loss or injuries which will be recovered by the procedure of civil court – if the jurisdictional of the court is the view that the compensation that will be sought beyond the court order itself that the appropriate which look into the subject matter. While performing the procedure of payment towards any person who is accountable for getting remedial measure for loss or injuries that are caused by the accused through the offence or happening, whenever compensation is taken into consideration of the court then it can be recoverable by such type of person in the civil court.

3. Within the process of court, one might possess a question towards the fact that who is the defined victim and where the death has been caused? If the victim is dead then who is liable for compensating in the crime? The remedy will be provided to the family members of the victim, the jurisdictions of the court are well aware of the severe depth of the situation. Therefore, according to the legislative as well as judiciary system that tied the hands for the completion of getting justice. Sufferers are entitled to the recovering damages from the person who has sentenced for the loss or injuries that subsequently result in death. Whenever any type of person is been convicted with the charges of vigorous offence by having another person's life causing damage or of having any type of abetted towards the commission towards the crime.

4. Compensation towards the victim related to the defined crime in the varied offence like – theft, criminal breach of the trust, cheating, threats or coercion, etc. – in the case like theft, any type of criminal breach towards trusting, cheating/conspiracy, criminal misappropriation, many more, within which the court can either tries for the sake of recovering of goods or wherein in the cases as well as a judgment the recovery is not even possible under the court order for providing with the compensation as a remedial reform for the price of such specified goods.

The offender or the accused person who has been convicted with the charges in such situation the court may order the court that to pay a minimum of certain payment as a sum of compensation towards the victim of the crime who has suffered any type of loss, harm, or injuries. In the Indian legal system – victim or sufferer friendly system but though in many cases the justice is delayed or never been provided to the specified person, Victim’s rights and obligation are kept on the top of the priority list.[20]


SUGGESTIONS OF INITIATIVES AND CRITERIA OF RECOMMENDATIONS

1. There are few mandatory changes which are needed to be amended for enhancing the whole point of legislative over paradigm that usually lacks the judicial determination that has been exposed over numerous flaws in the present contemporary legal system for the procedure of compensation therefore it is an urgent need for the revamping of the whole legal procedure.

2. The amendment or ratification which was elaborated in the law commission report 41st and 42nd that took consideration regarding the betterment of the legislative system that also takes further procedure into account for not inheriting the weakness or regrettable act that is not exercised in the court with full statutory power or authorities.

3. The rules and regulations which are specifying the record for the reason that usually not provide or occasionally provide the remedy as fine or compensation in the cases of a death sentence. Lastly, the government should possibly make strict laws to provide compensation to the victim and for the welfare, this particular enactment should be declared as the primary right towards the victim or sufferer of the crime.


CONCLUSION

The issues related to the grey area related to the victim, offenders, and the court is getting flagged over the appropriate resolution of the dispute with the help of the judiciary as the problem and challenges which are faced have varied nature that should not be headed under the dampening among the spirit in the contemporary era jurisprudence. In the development of modern criminology which bends towards the act of victims’ rights which was later expended substantively and followed by the procedural regulation by inserting a few ratified laws that would help the system to promote rightly based remedial reforms. All the courts have embedded the visualized matter over the award of compensation as essential parts of methodology which will not only redress the act of violation but also bifurcate as the deterrent. There has been a paradigm shift towards the perspective of the official establishment of law and criminal form of justice towards the sufferer population in India, with the support of line under the basic principles that will be enumerated in the year of 1985 declaration towards the human fundamental rights, restitution towards the primary holder of rights, rehabilitation for the welfare, and remedial measure to the suffered section. Lastly, the humiliation over the act and the reputation of an individual can be snuffed out but cannot be recompensed as there will be a mandated procedure for the monetary fine which will least be provided to the victim with some solace.

[1] Saurav Kumar, “Victim Compensation Scheme: An Aspect of Modern Criminology”, Legal service India (10th Feb., 2022, 09:10 A.M.), http://www.legalserviceindia.com/legal/article-332-victim-compensation-scheme-an-aspect-of-modern-criminology.html [2] Dipa Dube, “Victims Compensation Schemes in India: An Analysis”, Vol. 13 (2), pp. 339-355 (2018). [3] Anubhav Pandey, “Compensation of Victim of Crime in India” (I Pleaders, 10th Feb., 2022, 100:00 A.M.), https://blog.ipleaders.in/compensation-victim-crime-india/ [4] Abhishek Kumar, “An Analysis of Victim Compensation Schemes in India”, Vol. 55 (45) (2020). [5] Saurav Kumar, “Victim Compensation Scheme: An Aspect of Modern Criminology”, Legal service India (11th Feb., 2022, 12:25 P.M.), http://www.legalserviceindia.com/legal/article-332-victim-compensation-scheme-an-aspect-of-modern-criminology.html [6] Vibha Mohan, “Revisiting Victim Compensation in India”, Manupatra (11th Feb., 2022, 14:50 P.M.), http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf [7] Abhishek Anand, “Compensation to the victim of crime: Assessing Legislative Framework and Role of Indian Courts”, Legal Service India (12th Feb., 2022, 17:20 P.M.), http://www.legalserviceindia.com/articles/pun.htm [8] Dipa Dube, “Victims Compensation Schemes in India: An Analysis”, Vol. 13 (2), pp. 339-355 (2018). [9] Anubhav Pandey, “Compensation of Victim of Crime in India”, I Pleaders (12th Feb., 2022, 19:40 P.M.), https://blog.ipleaders.in/compensation-victim-crime-india/ [10] Abhishek Anand, “Compensation to the victim of crime: Assessing Legislative Framework and Role of Indian Courts”, Legal Service India (13th Feb., 2022, 11:15 A.M.), http://www.legalserviceindia.com/articles/pun.htm [11] Abhishek Kumar, “An Analysis of Victim Compensation Schemes in India”, Vol. 55 (45) (2020). [12] Vibha Mohan, “Revisiting Victim Compensation in India”. Manupatra (13th Feb., 2022, 12:30 P.M), http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf [13] Abhishek Anand, “Compensation to the victim of crime: Assessing Legislative Framework and Role of Indian Courts”, Legal Service India (14th Feb., 2022, 16:55 P.M.), http://www.legalserviceindia.com/articles/pun.htm [14] Dipa Dube, “Victims Compensation Schemes in India: An Analysis”, Vol. 13 (2), pp. 339-355 (2018). [15] Saurav Kumar, “Victim Compensation Scheme: An Aspect of Modern Criminology”, Legal service India (14th Feb., 2022, 18:05 P.M.), http://www.legalserviceindia.com/legal/article-332-victim-compensation-scheme-an-aspect-of-modern-criminology.html [16] Abhishek Kumar, “An Analysis of Victim Compensation Schemes in India”, Vol. 55 (45) (2020). [17] Vibha Mohan, “Revisiting Victim Compensation in India”, Manupatra (14th Feb., 2022, 20:40 P.M,), http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-F__criminal.pdf [18] Abhishek Kumar, “An Analysis of Victim Compensation Schemes in India”, Vol. 55 (45) (2020). [19] Anubhav Pandey, “Compensation of Victim of Crime in India”, I Pleaders (15th Feb., 2022, 13:10 P.M.), https://blog.ipleaders.in/compensation-victim-crime-india/ [20] Dipa Dube, “Victims Compensation Schemes in India: An Analysis”, Vol. 13 (2), pp. 339-355 (2018). ĀĀĀ Ā

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