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It must be intensified as the execution proceeds. But the old legal position continues to apply if the originating offence in question was committed before 1 January Article e.

These provisions are unsuitable to satisfy the criteria of the constitutional distance requirement. Essentially, they provide excessively broad scope for assessment and discretion in fundamental core areas — with regard to treatment, care and motivation of the detainee and granting of relaxations of execution — without effectively obliging the prisons by clear legislative conditions to pursue a liberty-oriented execution of preventive detention aimed at therapy.

With regard to the preceding execution of a custodial sentence, there are no provisions to avoid preventive detention.

Neither a spatial separation of confinement in preventive detention from imprisonment nor the appointment of a legal adviser is laid down.

In addition there are other normative shortcomings. The overall normative concept must contain qualitative standards for the personnel and the material equipment for the execution of preventive detention; these standards must be respected by the Land legislature in the budget and do not leave any substantial room for interpretation to the executive.

Rösch and Prof. Dessecker in the oral hearing confirmed. There are shortcomings not only during preventive detention as such.

Even in the custodial sentence which precedes preventive detention there are considerable defects which have effects on the execution and duration of preventive detention and thus on the chance of regaining liberty.

In addition, in many places there is neither adequate preparation for release nor creation of a suitable social environment to receive the detainee after release.

The psychological or psychiatric support of the detainees is inadequate in practice. The cause of this may only to a limited extent be attributed to the sphere of the persons affected.

The small number of detainees under preventive detention who are in therapeutic treatment is also specifically attributable to insufficient staff and equipment of the institutions.

In this connection it should be taken into account that successful liberty-oriented therapeutic treatment will generally require a greater number of personnel, for example also to motivate those unwilling to undergo therapy Bartsch, loc.

Although prison service practitioners see great potential in the therapy possibilities of socio-therapeutic institutions to give detainees under preventive detention the opportunity to regain their freedom and to prevent life detention, there are considerable problems in accommodating these detainees in socio-therapeutic institutions.

One reason for this is that the socio-therapeutic institutions often do not have enough places for preventive detention detainees.

At the same time, in many places socio-therapeutic institutions are extremely unwilling to take in such detainees Bartsch, loc. This is particularly clearly shown by the small number of persons affected who are in a socio-therapeutic institution: in March , of a total of persons who were ordered to be placed in preventive detention, only 83 were in social therapy Niemz, Kriminologische Zentralstelle e.

In addition, joint socio-therapeutic treatment of detainees in preventive detention and prisoners is often not tailored to the special needs of the former and therefore frequently results in undesirable developments Bartsch, loc.

What is more, during the period of imprisonment of those who were given an order of subsequent preventive detention when they were convicted there is insufficient work towards a suspension of the detention on probation.

Thus, for example, the persons affected are on the one hand generally not permitted relaxations of execution such as short leave and leave or detention in an open institution.

At the same time, the prisoners whose custodial sentences are followed by preventive detention are often not given access to the necessary therapy, or only given access in a secondary capacity, by the institutions Bartsch, loc.

But early commencement of therapy — during the custodial sentence — is the crucial deciding factor to avoid subsequent preventive detention or at least to make it as short as possible.

Above all, only in the rarest cases are unescorted measures such as short leave, work release and leave granted Bartsch, loc.

Finally, another obstacle to the release of the detainee under preventive detention is the frequent lack of structured cooperation between the institutions and institutions of post-detention care, and the failure to create a secured social environment to receive the detainee after release from preventive detention.

Thus, for example, there is a particular lack of places in facilities for assisted living which are able to accept the detainee after release Bartsch, loc.

In addition, there are problems in the transition of treatment from detention to later outpatient therapies.

As the oral hearing showed, therefore, there is a particular need for the creation of networks and suitable organisational structures in order to ensure consistent post-detention care of the detainee released after preventive detention.

The legislature may constitutionally draft provisions on the imposition and duration of this measure only as integral parts of a liberty-oriented overall concept aimed at therapy.

In particular, justice is not done to the high status of the right to liberty if the imposition of preventive detention is granted in isolation, although the constitutional requirements of the design of this measure are not structurally guaranteed because of normative shortcomings.

The persons affected are as it were subjected to an unconstitutional deprivation of liberty in full awareness of the situation. From the perspective of the protection of liberty, it is irrelevant in this connection that since the federalism reform in the year the Federal legislature has no longer been competent to legislate on imprisonment.

If, under its legislative competence for criminal law under Article The Federal and Land legislatures have a joint duty to create a legislative concept which satisfies the requirements set out above.

It is their task, taking account of the constitutional system of competences, to develop a liberty-oriented overall concept of preventive detention aimed at therapy.

In addition, the Federal legislature is competent for the provisions on judicial review of the continuance of preventive detention and for procedural provisions.

The Land legislatures, in turn, must in the exercise of their legislative competence draft provisions for the execution of preventive detention which ensure compliance with the distance requirement and are effective, and which guarantee liberty-oriented execution aimed at therapy.

Here, it is necessary above all to ensure that the requirements set out above cannot be circumvented in practice as a result of granting too much latitude, and that the distance requirement thus de facto comes to nothing.

Without complying with the distance requirement, the institution of preventive detention is incompatible with the fundamental right to liberty of detainees under preventive detention.

The weight of the affected concerns regarding the protection of legitimate expectations is also reinforced by the principles of the European Convention on Human Rights b with the result that a deprivation of liberty which is ordered or prolonged retrospectively can only be regarded as permissible if the required distance from punishment is preserved, if a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or conduct of the detainee and if the requirements of Article 5.

Each of the provisions constitutes a considerable encroachment on the fundamental right to liberty on Article 2. On this basis, a particularly great weight may be attributed to the concerns of the protection of legitimate expectations, for the provisions in question, in that they authorise the imposition or extension of an indeterminate deprivation of liberty by preventive detention, contain a serious — and possibly the most serious conceivable — encroachment upon the objectively affected fundamental right to liberty Article 2.

The encroachment made by preventive detention upon the fundamental right under Article 2. In this respect it should be taken into account that the violation of the distance requirement see 2 above , according to the principles of Article 7.

The constitutional classification of preventive detention is based inter alia on the fact that, like a custodial sentence, it results in deprivation of liberty and is served in regular prisons.

In addition, according to the Chamber of the Fifth Section of the European Court of Human Rights, with regard to the de facto situation of the detainee under preventive detention it is not apparent that preventive detention has merely a preventive function and serves no punitive purpose.

In this regard, the Chamber points out that there are no particular measures, instruments or facilities aimed at detainees in preventive detention which have the purpose of making them less dangerous and thus restricting their confinement to the period absolutely necessary to deter them from committing further offences.

The Chamber also refers to further criteria, for example the procedure for imposing detention and the severity of the measure, although this severity, it holds, is not the sole deciding factor European Court of Human Rights, loc.

As long ago as , the Federal Constitutional Court, in its decision of 4 February , discussed the aspect of the de facto effect of a measure of correction and prevention; although it did not find this to be conceptually relevant for the element of punishment in Article However, according to the Senate's case-law, even the Basic Law itself, in connection with a review of a violation of Article 2.

There is therefore no occasion to adapt the constitutional concept of punishment in Article This method followed by the European Court of Human Rights in creating concepts has its justification for the purposes of the European Convention on Human Rights.

The independence of the concept formation of the European Court of Human Rights and the necessarily entailed flexibility and lack of precision take account of the legal, linguistic and cultural variety of the Member States of the Council of Europe see Grabenwarter, Europäische Menschenrechtskonvention , 4th ed.

Article 5. To justify the configurations in the present case, Article 5. Germany and the judgments of 13 January , Application no. Germany and Applications nos.

Germany , marginal nos. In addition, the Chamber of the Fifth Section, in a further judgment of 13 January Application no. Germany , found there was no justification under Article 5.

The second judgment, however, contains no new finding of criminal responsibility, but presupposes one. Nevertheless, the existence of Article 5.

However, in the cases under consideration here such a danger is likely to be found only in quite exceptional circumstances. United Kingdom , marginal no.

Former Yugoslav Republic of Macedonia , marginal no. Netherlands , marginal no. United Kingdom, marginal no.

Conduct which is merely socially deviant, however, is not a disorder within the meaning of this provision see European Court of Human Rights, loc.

An anti-social personality or a psychopathic disorder may be included, however see European Court of Human Rights, judgment of 20 February , Application no.

In the consideration of the question as to whether the requirement of mental disorder within the meaning of Article 5.

Furthermore, the additional requirement of lawfulness of the deprivation of liberty contained in Article 5. The requirements of the prohibition of arbitrariness depend on the nature of the deprivation of liberty or the relevant ground of justification within the system of Article 5.

According to this, the authoritative date to be considered for the foreseeability of deprivation of liberty under Article 5. In contrast, under Article 5.

The requirement that the deprivation of liberty should be lawful also leads to the need for a connection between the purpose of the deprivation of liberty and the institution in which the person involved is accommodated see, most recently, European Court of Human Rights, judgment of the seven-judge chamber of 29 January , Application no.

Belgium , marginal no. The justification of deprivation of liberty under Article 5. Only in such exceptional cases can a predominance of public safety interests still be assumed.

The provisions cannot be interpreted in such a way that they are still constitutional bb. In addition, in their current versions the provisions do not ensure that only highly dangerous offenders, the deprivation of whose liberty is justified under Article 5.

The limits of an interpretation in conformity with the Basic Law follow in principle from the correct use of the generally accepted methods of interpretation.

In this process, respect of the legislative power makes it necessary, within the limits of the constitution, to uphold the maximum possible of what the legislature intended.

However, this discretion exists only within the purpose of the authorisation for discretion. This means that the non-constitutional courts may in the individual case, even if the requirements are satisfied, refrain from a retrospective order of preventive detention if there are good reasons, but they may not in general fail to use the legal consequence intended by the legislature, that is, allow the provisions to have no effect whatsoever and in this way usurp the role of the legislature in making the fundamental decision as to whether retrospective preventive detention is to be completely abolished.

It is for the legislature alone to lay down whether all detainees affected by the retrospectiveness problem are to be released or only those in whose case this is constitutionally imperative.

It is equally impossible, by interpreting the authority of discretion in conformity with the Basic Law, to reduce the existing statutory provisions to the part of them which is in conformity with the Basic Law.

For at present the non-constitutional courts do not have the normative machinery necessary to create a situation in the law of preventive detention which is in conformity with the Basic Law.

Only the legislature is in the position to legislate on the requirements subject to which further preventive detention is constitutionally permissible, and to do so exhausting its possibilities of drafting and in the necessary detail.

In this connection, the legislature is in particular also free to replace preventive detention in whole or in part by committal to therapy, but it must interlink the area of application of this with the law of preventive detention in a way that leaves no doubt as to whether an area of application of the provisions under discussion in the present case is to remain or the provisions should be repealed.

It was precisely these narrower provisions that the legislature had in mind when passing the legislation. In addition, the fiction that the decision of the European Court of Human Rights in an individual case is a national parliamentary statute violates the manner in which the European Convention on Human Rights takes effect nationally, which is laid down by the Basic Law, and also the principle of the separation of powers.

The decisions of the European Court of Human Rights in turn do not have the status of statute either; on the contrary, Article Nor do other provisions of the Convention support the view that it has an effect of binding precedent, extending beyond the individual case, on the courts of the Member States.

I, 10th ed. If, after all these considerations, the challenged provisions are incompatible with Article 2. All provisions affected by incompatibility with the Basic Law will continue in force, despite being unconstitutional, until the legislature reforms the law, and at the latest until 31 May 1.

Until then, however, they are to apply only in accordance with number III of the operative part of the judgment 2. Here, the Federal Constitutional Court generally declares the provisions incompatible and at the same time orders that the provisions in question are to continue in effect for a particular period of time.

In the present case, if the relevant provisions were declared void, this would mean that further preventive detention would lack a legal basis and the functioning of the existing two-track German system of measures of correction and prevention and penalties under criminal law would be disrupted with lasting effect.

All persons committed to preventive detention would have to be released immediately, which would cause almost insoluble problems for the courts, the administration and the police.

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Menu öffnen. In addition, joint socio-therapeutic treatment of detainees in preventive detention and prisoners is often not tailored to the special needs of the former and therefore frequently results in undesirable developments Bartsch, loc.

What is more, during the period of imprisonment of those who were given an order of subsequent preventive detention when they were convicted there is insufficient work towards a suspension of the detention on probation.

Thus, for example, the persons affected are on the one hand generally not permitted relaxations of execution such as short leave and leave or detention in an open institution.

At the same time, the prisoners whose custodial sentences are followed by preventive detention are often not given access to the necessary therapy, or only given access in a secondary capacity, by the institutions Bartsch, loc.

But early commencement of therapy — during the custodial sentence — is the crucial deciding factor to avoid subsequent preventive detention or at least to make it as short as possible.

Above all, only in the rarest cases are unescorted measures such as short leave, work release and leave granted Bartsch, loc. Finally, another obstacle to the release of the detainee under preventive detention is the frequent lack of structured cooperation between the institutions and institutions of post-detention care, and the failure to create a secured social environment to receive the detainee after release from preventive detention.

Thus, for example, there is a particular lack of places in facilities for assisted living which are able to accept the detainee after release Bartsch, loc.

In addition, there are problems in the transition of treatment from detention to later outpatient therapies. As the oral hearing showed, therefore, there is a particular need for the creation of networks and suitable organisational structures in order to ensure consistent post-detention care of the detainee released after preventive detention.

The legislature may constitutionally draft provisions on the imposition and duration of this measure only as integral parts of a liberty-oriented overall concept aimed at therapy.

In particular, justice is not done to the high status of the right to liberty if the imposition of preventive detention is granted in isolation, although the constitutional requirements of the design of this measure are not structurally guaranteed because of normative shortcomings.

The persons affected are as it were subjected to an unconstitutional deprivation of liberty in full awareness of the situation.

From the perspective of the protection of liberty, it is irrelevant in this connection that since the federalism reform in the year the Federal legislature has no longer been competent to legislate on imprisonment.

If, under its legislative competence for criminal law under Article The Federal and Land legislatures have a joint duty to create a legislative concept which satisfies the requirements set out above.

It is their task, taking account of the constitutional system of competences, to develop a liberty-oriented overall concept of preventive detention aimed at therapy.

In addition, the Federal legislature is competent for the provisions on judicial review of the continuance of preventive detention and for procedural provisions.

The Land legislatures, in turn, must in the exercise of their legislative competence draft provisions for the execution of preventive detention which ensure compliance with the distance requirement and are effective, and which guarantee liberty-oriented execution aimed at therapy.

Here, it is necessary above all to ensure that the requirements set out above cannot be circumvented in practice as a result of granting too much latitude, and that the distance requirement thus de facto comes to nothing.

Without complying with the distance requirement, the institution of preventive detention is incompatible with the fundamental right to liberty of detainees under preventive detention.

The weight of the affected concerns regarding the protection of legitimate expectations is also reinforced by the principles of the European Convention on Human Rights b with the result that a deprivation of liberty which is ordered or prolonged retrospectively can only be regarded as permissible if the required distance from punishment is preserved, if a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or conduct of the detainee and if the requirements of Article 5.

Each of the provisions constitutes a considerable encroachment on the fundamental right to liberty on Article 2. On this basis, a particularly great weight may be attributed to the concerns of the protection of legitimate expectations, for the provisions in question, in that they authorise the imposition or extension of an indeterminate deprivation of liberty by preventive detention, contain a serious — and possibly the most serious conceivable — encroachment upon the objectively affected fundamental right to liberty Article 2.

The encroachment made by preventive detention upon the fundamental right under Article 2. In this respect it should be taken into account that the violation of the distance requirement see 2 above , according to the principles of Article 7.

The constitutional classification of preventive detention is based inter alia on the fact that, like a custodial sentence, it results in deprivation of liberty and is served in regular prisons.

In addition, according to the Chamber of the Fifth Section of the European Court of Human Rights, with regard to the de facto situation of the detainee under preventive detention it is not apparent that preventive detention has merely a preventive function and serves no punitive purpose.

In this regard, the Chamber points out that there are no particular measures, instruments or facilities aimed at detainees in preventive detention which have the purpose of making them less dangerous and thus restricting their confinement to the period absolutely necessary to deter them from committing further offences.

The Chamber also refers to further criteria, for example the procedure for imposing detention and the severity of the measure, although this severity, it holds, is not the sole deciding factor European Court of Human Rights, loc.

As long ago as , the Federal Constitutional Court, in its decision of 4 February , discussed the aspect of the de facto effect of a measure of correction and prevention; although it did not find this to be conceptually relevant for the element of punishment in Article However, according to the Senate's case-law, even the Basic Law itself, in connection with a review of a violation of Article 2.

There is therefore no occasion to adapt the constitutional concept of punishment in Article This method followed by the European Court of Human Rights in creating concepts has its justification for the purposes of the European Convention on Human Rights.

The independence of the concept formation of the European Court of Human Rights and the necessarily entailed flexibility and lack of precision take account of the legal, linguistic and cultural variety of the Member States of the Council of Europe see Grabenwarter, Europäische Menschenrechtskonvention , 4th ed.

Article 5. To justify the configurations in the present case, Article 5. Germany and the judgments of 13 January , Application no.

Germany and Applications nos. Germany , marginal nos. In addition, the Chamber of the Fifth Section, in a further judgment of 13 January Application no.

Germany , found there was no justification under Article 5. The second judgment, however, contains no new finding of criminal responsibility, but presupposes one.

Nevertheless, the existence of Article 5. However, in the cases under consideration here such a danger is likely to be found only in quite exceptional circumstances.

United Kingdom , marginal no. Former Yugoslav Republic of Macedonia , marginal no. Netherlands , marginal no. United Kingdom, marginal no. Conduct which is merely socially deviant, however, is not a disorder within the meaning of this provision see European Court of Human Rights, loc.

An anti-social personality or a psychopathic disorder may be included, however see European Court of Human Rights, judgment of 20 February , Application no.

In the consideration of the question as to whether the requirement of mental disorder within the meaning of Article 5. Furthermore, the additional requirement of lawfulness of the deprivation of liberty contained in Article 5.

The requirements of the prohibition of arbitrariness depend on the nature of the deprivation of liberty or the relevant ground of justification within the system of Article 5.

According to this, the authoritative date to be considered for the foreseeability of deprivation of liberty under Article 5. In contrast, under Article 5.

The requirement that the deprivation of liberty should be lawful also leads to the need for a connection between the purpose of the deprivation of liberty and the institution in which the person involved is accommodated see, most recently, European Court of Human Rights, judgment of the seven-judge chamber of 29 January , Application no.

Belgium , marginal no. The justification of deprivation of liberty under Article 5. Only in such exceptional cases can a predominance of public safety interests still be assumed.

The provisions cannot be interpreted in such a way that they are still constitutional bb. In addition, in their current versions the provisions do not ensure that only highly dangerous offenders, the deprivation of whose liberty is justified under Article 5.

The limits of an interpretation in conformity with the Basic Law follow in principle from the correct use of the generally accepted methods of interpretation.

In this process, respect of the legislative power makes it necessary, within the limits of the constitution, to uphold the maximum possible of what the legislature intended.

However, this discretion exists only within the purpose of the authorisation for discretion. This means that the non-constitutional courts may in the individual case, even if the requirements are satisfied, refrain from a retrospective order of preventive detention if there are good reasons, but they may not in general fail to use the legal consequence intended by the legislature, that is, allow the provisions to have no effect whatsoever and in this way usurp the role of the legislature in making the fundamental decision as to whether retrospective preventive detention is to be completely abolished.

It is for the legislature alone to lay down whether all detainees affected by the retrospectiveness problem are to be released or only those in whose case this is constitutionally imperative.

It is equally impossible, by interpreting the authority of discretion in conformity with the Basic Law, to reduce the existing statutory provisions to the part of them which is in conformity with the Basic Law.

For at present the non-constitutional courts do not have the normative machinery necessary to create a situation in the law of preventive detention which is in conformity with the Basic Law.

Only the legislature is in the position to legislate on the requirements subject to which further preventive detention is constitutionally permissible, and to do so exhausting its possibilities of drafting and in the necessary detail.

In this connection, the legislature is in particular also free to replace preventive detention in whole or in part by committal to therapy, but it must interlink the area of application of this with the law of preventive detention in a way that leaves no doubt as to whether an area of application of the provisions under discussion in the present case is to remain or the provisions should be repealed.

It was precisely these narrower provisions that the legislature had in mind when passing the legislation. In addition, the fiction that the decision of the European Court of Human Rights in an individual case is a national parliamentary statute violates the manner in which the European Convention on Human Rights takes effect nationally, which is laid down by the Basic Law, and also the principle of the separation of powers.

The decisions of the European Court of Human Rights in turn do not have the status of statute either; on the contrary, Article Nor do other provisions of the Convention support the view that it has an effect of binding precedent, extending beyond the individual case, on the courts of the Member States.

I, 10th ed. If, after all these considerations, the challenged provisions are incompatible with Article 2. All provisions affected by incompatibility with the Basic Law will continue in force, despite being unconstitutional, until the legislature reforms the law, and at the latest until 31 May 1.

Until then, however, they are to apply only in accordance with number III of the operative part of the judgment 2.

Here, the Federal Constitutional Court generally declares the provisions incompatible and at the same time orders that the provisions in question are to continue in effect for a particular period of time.

In the present case, if the relevant provisions were declared void, this would mean that further preventive detention would lack a legal basis and the functioning of the existing two-track German system of measures of correction and prevention and penalties under criminal law would be disrupted with lasting effect.

All persons committed to preventive detention would have to be released immediately, which would cause almost insoluble problems for the courts, the administration and the police.

The consideration of consequences must also include all potential detainees under preventive detention in the case of whom committal to preventive detention has been ordered, but who are still serving custodial sentences and who could not begin preventive detention despite the fact that they may be highly dangerous.

With regard to the extent of the measures which are necessary to put the distance requirement into practice see under C. The high value of the fundamental right to liberty limits the spectrum of encroachment permitted in the transitional period.

During the transitional period, encroachments may extend only as far as they are indispensable in order to uphold the order of the area of life affected.

This applies in particular with regard to the requirements of the prognosis of dangerousness and the legal interests endangered.

In general, the principle of proportionality will only be satisfied on condition that a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or the conduct of the detainee.

In view of the fact that it is primarily for the legislature to determine the conditions of a mental disorder within the meaning of Article 5.

In the present context, the Therapeutic Committal Act is not to be subjected to a constitutional review. The transitional arrangement in number III of the operative part of the judgment takes account, as far as is possible and necessary, of this concern of the legislature.

The various decisions challenged violate the rights of the complainants under Article 2. In their new decisions, the competent courts will have to give consideration in particular to the degree of dangerousness of the complainant in each case and to decide whether against this background the review of a relevant mental disorder appears at all necessary.

Only as a last step will it be necessary to ask whether such a mental disorder exists. In particular in the case of the first complainant, there are considerable doubts from the outset as to the existence of a relevant mental disorder, in view of the possibilities of recidivism mentioned in the expert report of Prof.

The decision was unanimous with regard to the operative part on II. Menu öffnen. Decisions of the European Court of Human Rights which contain new aspects on the interpretation of the Basic Law Grundgesetz - GG are equivalent to legally relevant changes which may lead to the final and non-appealable effect of a Federal Constitutional Court decision being transcended.

However, the provisions of the Basic Law are to be interpreted in a manner that is open to international law. Taking account of the European Convention on Human Rights may not result in the protection of fundamental rights under the Basic Law being restricted; this is also excluded by the European Convention on Human Rights itself see Article 53 of the European Convention on Human Rights.

This obstacle to the reception of law may become relevant above all in multi-polar fundamental rights relationships in which the increase of liberty for one subject of a fundamental right at the same time means a decrease of liberty for the other.

The possibilities of interpretation in a manner open to international law end where it no longer appears justifiable according to the recognised methods of interpretation of statutes and of the constitution.

In this connection, the principles of Article 7. Lettris is a curious tetris-clone game where all the bricks have the same square shape but different content.

Each square carries a letter. To make squares disappear and save space for other squares you have to assemble English words left, right, up, down from the falling squares.

Boggle gives you 3 minutes to find as many words 3 letters or more as you can in a grid of 16 letters. You can also try the grid of 16 letters.

Letters must be adjacent and longer words score better. See if you can get into the grid Hall of Fame! Most English definitions are provided by WordNet.

The wordgames anagrams, crossword, Lettris and Boggle are provided by Memodata. The web service Alexandria is granted from Memodata for the Ebay search.

The SensagentBox are offered by sensAgent. Change the target language to find translations. Tips: browse the semantic fields see From ideas to words in two languages to learn more.

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