Holes in prosecution behind acquittals in Mubarak case

Head judge Ahmad Refaat said Saturday the criminal court's ruling of a life sentence (25 years) for former President Hosni Mubarak and his Minister of Interior Habib al-Adly and the acquittal of the Mubarak sons and senior ministry officials is largely based on flaws and contradictions in the prosecution's case.

Mubarak and Adly were judged guilty on charges of conspiring to kill more than 800 protesters, while financial crimes were dropped.  Mubarak and Adly are charged with complicity in the murder and attempted murder of protesters across the nation, between 28 January and 31 January 2011, under Articles 40(2), 45, 230, 231 and 235 of the Penal Code. According to Article 40(2) any person who agrees with another to commit a crime is criminally liable. Article 45 establishes an "attempt" as the beginning of carrying out an act with the intention to commit a crime. Article 235 determines the death penalty or life sentence as the fate of accomplices to a premeditated murder, and it's up to the judge to decide which verdict of the two to opt for, according to Article 17 of the Penal Code.

Refaat laid out nine reasons for the acquittal of the other nine defendants in the case, who are fugitive businessman Hussein Salem, the former president's sons, Gamal and Alaa Mubarak, and six former officials: First Assistant Interior Minister for the Central Security Forces Sector Major General Ahmed Mohamed Ramzy Abdel Rashid, First Assistant Interior Minister for Public Security Major General Adly Mostafa Fayed, First Assistant Interior Minister for the State Security Agency Major General Hassan Abdel Rahman, Cairo Security Directorate chief Major General Ismael al-Shaer, Giza Security Directorate chief Major General Osama al-Marass and 6th of October Security Directorate chief Major General Omar al-Farmawy.

Some of the reasons cited by Refaat included the lack of concrete evidence, the prosecution's inability to identify the individual perpetrators of the killings and the contradictory testimony of prosecution witnesses. According to Refaat, the documents and videos provided to the court as evidence failed to prove that any defendants other than Mubarak and Adly committed the crimes. 

Mubarak, his sons, and Salem are also charged with financial crimes. Salem was charged over alleged allocations to Mubarak and his two sons of five villas in Sharm el-Sheikh in exchange for purchasing public at below-market prices in the 1990s. The second charge is related to natural gas sales to Israel at prices below international standards.

Refaat judged them not guilty since the sales in question occurred more than 10 years ago, which is beyond the statute of limitations for non-state employees to be prosecuted on corruption charges, according to the Penal Code.

As for the crimes of killing protesters, in which the six aides are accused along with Mubarak and Adly, the judge said that no concrete evidence was provided against these defendants.

On the fifth session of Mubarak's trial on 9 September, police officer Essam Shawky, the eighth witness in the case, told the court that Adly ordered security officials to quell the anti-government protests by any means.

The ninth witness, Police General Hassan Abdel Hameed, corroborated Shawky's testimony. He told the court that he attended a meeting on 27 January, during which Adly ordered implementation of "Plan 100," a secret plan whereby police would deter protesters from reaching Tahrir Square by any and all means. These two testimonies were believed to be against both Adly and Ramzy.

But Refaat said that these testimonies contradicted others from police officers who were investigated by the prosecutors. On the fourth session on 8 September, one witness told the court that neither Mubarak nor Adly gave security forces orders to shoot protesters. Two witnesses said they were told to show self restraint.

Refaat said that the court decided not to take all of these 'contradicting’ testimonies into account.

Refaat added that the actual people who killed the protesters were not brought to the court and the prosecutors could not identify them. Accordingly, the court was unable to find any evidence to indicate that Adly's six deputies are implicated in the killings, he said.

Judges did not consider the videos submitted to the court as concrete evidence against the six aides. Shawky, the eighth witness in the trial, had presented a DVD that he said contained scenes showing police firing on demonstrators.

Without providing details, Refaat said the court was suspicious about all the records presented by Central Security Forces, including those listing weapons given to security forces on 28 January, dubbed the "Friday of Anger."

Furthermore, the court said that there was no technical evidence that indicated the victims were killed by gunshot wounds. Refaat added that medical reports, even if true, don’t provide evidence about the actual people who killed the protesters.

In the prosecution's arguments, lawyer Mostafa Suleiman had said on 4 January 2012, "We listened to over 2,000 witness accounts … The defendants did not have a direct role in the crime scene but are referred to trial for being … participants in it, and inciting the killers, whose individual identities are unknown, to shoot protesters.

"The state agencies, including the National Security Agency and Egyptian intelligence, have deliberately not cooperated with the prosecutors in the investigation," he added.

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