The Egyptian Initiative for Personal Rights (EIPR) said that the Court of Cassation’s ruling today to overturn the conviction of ousted president Mubarak and his interior minister Habib al-Adli was the expected outcome of a flawed, disappointing trial. The EIPR said that the retrial must avoid the grave mistakes of the first trial that led to the annulment of the judgments issued.

In a report issued today titled “Mubarak’s First Trial: A Wasted Opportunity for Justice,” the EIPR offers a legal and political analysis of the trial and its flaws from the initial investigations to the issuance of the judgment in June 2012. 

The report also contains recommendations on how to avoid the same blunders and defects in the retrial, most significantly a recommendation to again refer the case file to the Public Prosecution for the inclusion of new evidence and to name the actual killers of revolutionaries as new defendants in the case. 

“The trial was disappointing from the beginning of the investigations and through the pronouncement of the judgment,” said Hoda Nasrallah, an attorney with EIPR’s criminal justice unit. “Despite popular optimism that justice would be served after seeing Mubarak and his cronies behind bars in court, what we ended up seeing were superficial, negligent inquiries that did not aspire to identify the real perpetrators of the crimes. Moreover, the trial was limited to crimes committed in the first seven days of the Revolution and to those victims who died or were injured in public squares only.”

She added, “The verdict in the case came as a huge shock, exonerating the security apparatus of any responsibility for demonstrators’ deaths and convicting the ex-president and his interior minister only because they failed to intervene to stop the killing, which the court ruled was committed by unknown elements.”

In its analysis, the EIPR states that the primary cause of the flawed judgment handed down by the Cairo felony court was that the prosecution went through the same security and judicial channels that were designed to protect the Mubarak regime and prevent any accountability even after the president stepped down. The personnel in these institutions, their structure and the legislative framework that governs them remained unchanged.

The EIPR’s analysis notes that politics, not a quest for justice, was the principal factor determining the conduct of those overseeing the trial, both in the Public Prosecution and the judicial panel. The Public Prosecution faced harsh criticism in the case for its severe dereliction of duty, its unjustified delay in opening an investigation and the fact that at times it was extremely slow to refer defendants to trial while at others it was unaccountably swift in completing its investigation. Moreover, the investigation ignored some suspects though evidence suggests their involvement in the crimes being prosecuted, yet further indication of the prosecution’s failure to identify the actual perpetrators.

Regarding the performance of the bench, the EIPR analysis notes that the court disregarded motions by lawyers for the victims to separate the charges of killing demonstrators from the corruption charges. It also rejected motions by victims’ lawyers to return the case file to the Public Prosecution to include the names of the original perpetrators as respondents in the case. Furthermore, the court panel refused to allow victims’ attorneys to question Field Marshall Hussein Tantawi during his testimony.

The EIPR analysis adds that the court disregarded the statements of more than 1,300 witnesses taken by the prosecution and cited as evidence in the referral order to prove that police were responsible for the murder and attempted murder of demonstrators. The court also ignored strong evidence in the case file, not to mention an enormous number of medical reports, material evidence seized including weapons, ammunition and live ammunition, the weapons logs from Central Security Forces divisions and video footage submitted by the Public Prosecution and provided by the plaintiffs and regular citizens, as well as the report of the first fact-finding commission on the events of the January revolution, all of which indicates police involvement in the killing of demonstrators.

Disregarding all this evidence, the court acquitted Adli’s aides, citing the fact that “the case documentation and seized items contain no evidence to persuade the court that the original perpetrators were police officers and personnel.” This is a clear indication of the stark politicization of the trial.

Today the Court of Cassation ruled to accept the appeal on all judgments issued by the criminal court on 2 June 2012, which included the conviction and life sentence for Mubarak and al-Adli for involvement in the crimes of murder and attempted murder, the acquittal of all al-Adli’s aides and the dismissal of the criminal suit filed against Mubarak, his sons and fugitive businessman Hussein Salem on charges of graft and fraud due to the statute of limitations. The Court of Cassation ordered that the cases be retried in another circuit.

The EIPR recommends taking the necessary measures to prevent the same mistakes and flaws in the retrial, including:

1. Grant motions by victims’ lawyers to refer the case file to the Public Prosecution pursuant to Article 11 of the Code of Criminal Procedure, for the inclusion of further evidence and to name new defendants, the original perpetrators.
2. Deal seriously with the material evidence and the findings of fact-finding commissions that investigated the events of the January revolution, especially those of the committee formed by President Mohamed Morsy after he assumed office in July 2012.
3. Provide all due process guarantees, including holding a public trial, providing the right to defense, protecting witnesses and compensating victims.
4. Establish an instrument independent of the judicial and executive apparatus to investigate all cases of death or serious injury committed by police, so that the security bodies charged with involvement are not responsible for investigating or collecting evidence for the charges against them.

To read a summary of the English report click here. To read the full report in Arabic click here.