There appears to be the usual share of confusion about what the Mubarak trial judge just said and did. As seen on television, the judge promised his “sons in the media” flash drives containing talking points (in the neighborhood of 200 pages) to help them, he said, with their news coverage until they have had a chance to read the entire ruling. Until that summary is available, I will address here a couple of the most persistent questions so far, pending further updates.
Q: Does Mubarak walk out now?
A: Yes. He is free to go for the time being. There have been some conflicting statements in the media on this point by named and unnamed legal sources after the verdict was announced. The confusion stems from the fact that Mubarak was sentenced last May to three years in prison on corruption charges related to embezzling millions of Egyptian pounds from state funds to spend on mansions owned privately by himself and his family.
Because Mubarak was convicted in the “mansions” case in May 2014, many have made the logical assumption that he would serve that sentence until 2017, notwithstanding today’s combination of acquittals and non-convictions of other charges of killing protesters and corruption, which isn’t the case. I have spoken to two senior criminal defense and human rights lawyers, who have independently confirmed that Mubarak’s three-year sentence in the mansions case does not start at the date of his conviction in May 2014, but rather at the date of his arrest and pre-trial detention in May 2011. With today’s acquittal, there is no legal basis for keeping him in prison.
Both sources have directed me to Article 483 of the Code of Criminal Procedures. This is my informal, non-lawyerly English translation:
“If a defendant is found not guilty of a crime for which he was held in pretrial detention then the period of pretrial detention shall be deducted from the period [of imprisonment] to which the defendant is sentenced for any [other] crime he might have committed or for which he has been investigated while in pretrial detention.”
The above is legalese for saying that a defendant’s prison term starts not at the time of sentencing but at the time of detention, even if that detention was for another charge. So even though Mubarak was held between May 2011 and May 2014 for the protester-killing charge, that period will count as time served for the mansions case.
The three-year sentence Mubarak was handed in May 2014 ended, therefore, in May 2014. A coincidence, of course – To suggest otherwise would be ground for prosecution for “insulting the judiciary.”
Q: Was Mubarak acquitted of the charge of killing protesters?
A: No, he wasn’t. He was not convicted either. The judge threw out the entire charge on procedural grounds.
First, the necessary background: Following Mubarak’s abdication of power in February 2011, Public Prosecutor Abdel Meguid Mahmoud decided to investigate the killing of protesters during the 18 days of revolt that ended Mubarak’s tenure. On March 23, 2011, Mahmoud, who had served under Mubarak and remained in office until late 2012, indicted Mubarak’s Interior Minister Habib al-Adly and his senior assistants, but not Mubarak himself, for having ordered or otherwise abetted the killing of protesters throughout the country. Two months later, the Supreme Council of Armed Forces, which had succeeded Mubarak in power, faced pressure from street demonstrations demanding accountability for Mubarak too. On May 24, 2011, the public prosecutor added Mubarak as a co-defendant in the case.
The fact that Mubarak was only added as a defendant two months after the case had been referred to trial is the technicality the judge used today to dismiss the charge against him. By not indicting Mubarak from the beginning, the judge reasoned, the prosecution had made “an implied decision that there were no grounds for criminal proceedings” against him. This “no-grounds” decision can be formally reversed by the public prosecutor within a window of three months. Mubarak’s defense lawyers argued, and today the court agreed, that the prosecution reversed the implied no-grounds designation of Mubarak without following proper procedures. For that technical error, the judge ruled the charge against Mubarak for the killing of protesters as inadmissible and dismissed that charge without considering it or ruling on its merits.
Mubarak’s lawyers had raised that same defense in the first trial (Mubarak was sentenced to life in 2012, before the Court of Cassation threw out that sentence and ordered the retrial that ended today). The first trial court had dismissed that defense, according to Hoda Nasralla, a criminal justice lawyer with the Egyptian Initiative for Personal Rights, who observed and wrote a detailed report on the first trial. Nasralla told me she had argued against that same defense in the first trial, where she represented some of the victims’ families as civil claimants in the case. Here is the gist of her argument:
- There was never a preliminary decision by the prosecution that there were no grounds to try Mubarak, explicit or implicit. It is inconceivable to argue that the March 2011 indictment (in which Mubarak was not named) is a declaration that there was no evidence against Mubarak, because until then Mubarak had never been questioned or even declared a suspect in the trial. A no-grounds designation could not be this subtle.
- Assuming that the decision to not name Mubarak as a defendant in March could be considered an “implied declaration” that there were no grounds to prosecute, then why can’t the decision to add Mubarak as a co-defendant in May be considered an implied reversal of the implied declaration?
- Assuming there was even an explicit no-grounds declaration, Article 213 of the Code of Criminal Procedures allows prosecutors to reopen investigations against any suspect or defendant if new evidence is identified or presented.
Nasralla, like many other observers, is convinced that this procedural argument was bought by today’s court not necessarily for its strength on merits, but because it was an attractive way for the court to dismiss the charge without a not-guilty finding.
Q: Is this the end?
A: Of course not. Egyptian court sagas of this size and nature don’t usually end. But the next stage could be filled with even more drama. The public prosecutor can, and most likely will, appeal today’s verdict before the Court of Cassation (Egypt’s highest court on criminal matters).
This court is not a substantive appeals court – it merely reviews whether or not the lower court decision complied with laws and procedure without reexamining the evidence. The Court of Cassation could simply ratify today’s verdict and that would be the end of it. But if the court decides to overturn and throw away the conviction for the second time, then it doesn’t get to send the case back to a lower criminal court for retrial. The law establishing the court stipulates that a third and final retrial of this nature will be conducted by the justices of the Court of Cassation themselves, who then act as a normal criminal court with full investigative powers.
Cassation justices are considered the nation’s most senior and best qualified bench. And because they’re elected by their peers, they are by far the country’s most independent court. Not that anyone is doubting the independence of other parts of the judiciary, of course.