Former Egyptian President Hosni Mubarak could have stood trial before a "revolutionary” tribunal during the two months when the constitution was suspended under the Supreme Council for the Armed Forces (SCAF). However, he was protected by the former public prosecutor through legal maneuvering, and the judiciary proceeded with exploiting legal loopholes to set him free.
Cairo – The period between the issuance of the decision by former Egyptian public prosecutor Abdel-Majid Mahmoud to imprison deposed President Hosni Mubarak and his two sons in 2011, and the decision to acquit them along with Mubarak's interior minister and other security officials was not very long. Three years do not count for much compared to Mubarak's 30-year rule. His period of incarceration became like some sort of absolution, compelling the anchor on Sada al-Balad TV station to address him as "Mr. President" in his first audio interview after the "not guilty” verdict [was issued].
Through the decision to jail Mubarak, former public prosecutor Mahmoud seems to have preserved his position for over 15 months, amid calls by the revolutionary youths for his dismissal on the ground that he is a symbol of the former regime. The verdict issued on Saturday has shown that Mubarak's time in jail was a sort of protection provided by Mahmoud.
Although the public prosecutor enjoys legal immunity and cannot be removed, the period that followed Mubarak’s resignation and the transfer of power to SCAF under Field Marshall Hussein Tantawi witnessed a suspension of the constitution (during which it was possible to form revolutionary tribunals). The parliament was also dissolved, which is a period that lasted nearly two-months until the introduction of amendments to the constitution after the March 19 [2011] referendum.
With the ratification of the constitutional amendments, the time period which could have allowed the removal of Mubarak's men in the judiciary through revolutionary trials – as demanded by the demonstrators at Tahrir Square – ended. Somehow, Mubarak turned from someone who is accused of political corruption and responsibility (at least politically) for the crimes committed during his rule to a suspect in a handful of cases, in which he was successively acquitted.
The exploitation of shortcomings in laws and regulations began to clear the way for Mubarak’s acquittal. What the Egyptians did not know back then was that the public prosecutor, who was appointed by Mubarak and supervised the investigations with him, is the one who declared him not guilty. The prosecution that investigated the killing of the protesters did not include Mubarak as a suspect, until it yielded to popular pressure and referred him to a “criminal” court based on a charge for which he was seen as guilty in advance. At the time, this procedure could only be understood by legal experts.
It is well known that litigation procedures in the Egyptian criminal courts pass through three stages. The first stage begins at the Criminal Court, after which the case is referred to another criminal department if the Court of Cassation accepts the appeal. At the last stage, the Court of Cassation looks into the case and delivers a final verdict. In Mubarak's case, the prosecution will have to appeal the “not guilty” verdicts at the Court of Cassation, which may accept the appeal and reopen the trial, or accept the verdict as final. In any case, the Court of Cassation has thousands of cases to look into, which means it could take months or years to set a trial date for and adjudicate.
Judicial sources indicated to Al-Akhbar that Mubarak's trial cost the state treasury more than $15 million, which covered Mubarak’s stay at Tora Prison Hospital, Sharm el-Sheikh International Hospital, the International Medical Center, and al-Maadi Hospital. They are all military establishments where the former president received special treatment in terms of visitation rights and phone use contrary to Egyptian prison regulations. This also happened during deposed President Mohammed Mursi's term.
Judicial sources told Al-Akhbar that Mubarak has about two more months in prison, before he is released, since his time spent in jail (3.5 years) will be deducted from the three-year prison sentence issued by the court in the presidential palaces case. The nine months during which he was released will be excluded from his time served. The sources gave two possible scenarios for Mubarak’s remaining in jail after the end of his sentence period. "He would be kept under house arrest in the event of the declaration of a state of emergency in accordance with the law, or jailed in connection with other cases. But both options are entirely unlikely," the sources revealed.
In the same context, former head of the criminal court, Counselor Rifaat al-Sayyed, said that the court has not yet exonerated Mubarak in the bribery case involving businessman Hussein Salem. "However, it decided that the criminal case has expired under the statute of limitations, which compelled the court president to address the legislature to amend the law to avoid the the dismissal of the bribery case due to the expiration of the statute of limitations," he explained. According to Sayyed, the judge's decision based on the lack of probable cause to file a lawsuit against Mubarak is "due to a procedural mistake by the public prosecution, when it did not include his name in the list of suspects the first time it was issued."
However, the surprise was in the court’s verdict regarding the lack of "probable cause to file a lawsuit against Mubarak regarding the killing of demonstrators." This is the same item used by Mursi's lawyer in charges related to incitement to the murder of protesters outside al-Ittihadiya Presidential Palace during the demonstrations against the constitutional declaration held at the end of 2012. The prosecutor declared the lack of probable cause to file a lawsuit, but later used the incident as one of the major cases against Mursi. On Sunday, the Cairo Criminal Court decided to resume the proceedings in the prison break case that took place after the January 25 Revolution, which involves Mursi and 130 other suspects.
As for Mubarak's sons, apart from the cases related to manipulation in the Egyptian Stock Exchange, there are no longer any cases for them to be tried for. This paves the way for their release within a few months, after they finish their sentence related to the presidential palace case, which will be considered by the Court of Cassation next January following an appeal by the two men's lawyer, Farid al-Dib.
This article is an edited translation from the Arabic Edition.
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