London — The landmark conviction of the former Egyptian President Hosni Mubarak on June 2, 2012, on charges of complicity in the murder of peaceful protesters during pro-democracy protests sends a powerful message to Egypt's future leaders that they are not above the law, Human Rights Watch said today. However, the acquittal of four assistant ministers of interior on the grounds of insufficient evidence highlights the failure of the prosecution to fully investigate responsibility for the shooting of protesters in January 2011, giving a green light to future police abuse, Human Rights Watch said.
The North Cairo Criminal Court, with Judge Ahmed Refaat presiding, sentenced Mubarak and his minister of interior, Habib al-Adly,to life imprisonment on the grounds that they knew about and failed to prevent the violence against protesters, after a trial that Human Rights Watch observers considered overall to be in accordance with international fair trial principles.
"These convictions set an important precedent since just over a year ago seeing Hosni Mubarak as a defendant in a criminal court would have been unthinkable," said Joe Stork, deputy Middle East director at Human Rights Watch. " But the acquittal of senior ministry of interior officialsfor the deaths and injuries of peaceful protesters leaves police impunity intact and the victims still waiting for justice."
Those acquitted include Ahmed Ramzy, the former head of the Central Security Forces, Egypt's riot police, and Ismail al-Shaer, former head of Cairo security, who by virtue of their position at least, at a minimum must have known about the illegal use of deadly force against protesters by police forces under their control. The court did not appear to apply the same due diligence standard it applied to Mubarak and Adly, Human Rights Watch said.
This is the first trial of a former Arab head of state in which the defendant has personally appeared since waves of street protests hit the Arab world in December 2010. On May 24, 2011, the public prosecutor formally charged Mubarak with complicity in the murder and attempted murder of protesters, complicity in improperly facilitating a concession to provide natural gas sales to Israel, and accepting a bribe in return for illicit grants of state-owned land. The prosecutor also referred Mubarak's sons,Gamal and Alaa Mubarak, and alleged business associate Hussein Salem to trial on charges relating to the bribe and illicit grants of state-owned land.
Mubarak first appeared in court on August 3, 2011. On August 15, Judge Refaat consolidated the trial with that of former interior minister Habib al-Adly, four high-ranking Interior Ministry officials, and two other heads of security for governorates adjacent to Cairo who had been indicted in connection with the protests. The trial phase in Mubarak's case was officially closed on February 22, 2012.
Mubarak and Adly were convicted on the charge of complicity in the murder of peaceful protesters. The court acquitted Hosni, Alaa and Gamal Mubarak, as well as Hussein Salem of all the corruption charges.
Fair Trial Guarantees
Human Rights Watch monitored the trial and found that, overall, Judge Refaat and the other two judges on his panel properly handled the courtroom management of multiple defendants and civil parties on disparate charges and generally permitted the defendants and their counsel ample opportunity to submit motions, argue, and rebut.Although certain civil party counsel voiced concerns that they were not getting their full day in court, the court was able to set aside argument sessions for civil parties collectively despite the large number of civil parties in the case and the absence of procedural rules consolidating them as a single group at trial or otherwise streamlining case management.
However, the court's abrupt decision to close the trial on January 2 and move to closing arguments the next day raised concerns because defense and civil party lawyers had outstanding requests to hear additional witnesses, such as officials from the General Intelligence Services and Presidential Guard, and to access documents they considered important. Although the decision appears to have been within the court's discretion under Egyptian law, it may have undermined some defendants' right to an adequate opportunity to present their defense as required by international law.
Defense counsel also contended in their closing arguments that although Mubarak, al-Adly, and the Interior Ministry officials are being tried for complicity in murder and attempted murder, the prosecution had not identified the people actually believed to be responsible for the killings in its charging documents or elsewhere.
Both the public prosecutor and the Mubarak and Adly defense lawyers have announced that they will appeal the decision. The appeal goes to to the Court of Cassation, Egypt's highest court for criminal matters, but only on grounds of procedural error or error in applying the law. The Court of Cassation can quash a verdict and order a retrial before another criminal court if the appeal is successful. As a party to the International Covenant on Civil and Political Rights, Egypt is obligated to allow any defendant to have their conviction and sentence reviewed by a higher tribunal, and such review must extend to the factual dimensions of the case and the sufficiency of the evidence to convict. The United Nations Human Rights Committee, in its General Comment No. 32 on the right to a fair trial, found that,"Areview that is limited to the formal or legal aspects of the conviction without any consideration whatsoever of the facts is not sufficient under the covenant."
Security Agency Obstruction of Investigation
In providing thereasoning behind the acquittals of the police chiefs, Judge Refaat said that the prosecution had failed to identify the perpetrators of the shootings and provide credible witnesses and material evidence linking the crime to the defendants. He added that the video evidence and recordings introduced as evidence had not convinced the court and that it was therefore impossible to attribute responsibility to the four ministry of interior chiefs.
Under Mubarak's rule, Egyptian police had impunity for systematic abuses such as torture and enforced disappearance. This trial highlighted the systemic weakness of the prosecution in Egypt in investigating police abuse and the involvement of commanders and officials, and the Interior Ministry'srefusal to cooperate with the investigation.
The first witness to take the stand in the trial, on September 5, 2011, was Gen. Hussein Moussa, director of the Communications Department of Egypt's Central Security Division during the protests that began on January 25, 2011. He had been convicted by a Cairo misdemeanor court and sentenced to two years in prison for destroying the phone call records of the Central Security Division's operational headquarters during the January protests. Gen. Moussa is currently free on bail, pending an appeal of his conviction.
The case documents include the following written response dated March 17, 2011,from Gen. Raafat Shehata of the General Intelligence Agency to assistant public prosecutor Adnan Fangary:
With regards to the request for the tapes of the surveillance cameras at the Egyptian museum from the period of 25/1- 3/2, 2011. I have the honor to present you with 6 tapes recorded during the period of 1-3/2/2011, as for the period of 25-31/1/2011, the tapes were recorded over since the system in placedates back to 1995 and does not record automatically but relies on manual operation.
When prosecutors made their pleadings on January 4, Counselor Mustafa Suleiman told the court that the Interior Ministry and National Security branch of the General Intelligence Service had not cooperated with its investigation, nor provided relevant evidence or documents. Judge Refaat asked the prosecutor whether the state agencies had deliberately refused to cooperate with the prosecution's investigation or whether their lack of cooperation was a question of capacity and resources. Suleiman said he could not definitively answer the question "on the official level" until an investigation was conducted, but that he believed "on the personal level" that the lack of cooperation was intentional or at least negligent.
At a hearing on February 20, Suleiman said that, "There was no door on which the prosecution did not knock," to identify those responsible for the crimes. He added that while the prosecution expended every effort to try to identify those responsible, especially those caught on video and easily recognizable to the Interior Ministry, the prosecution could not be expected to interrogate all the members of the Central Security units that were serving at the time and place where deaths occurred. "Each unit has 90 members," he said. "Would we reach anything if we interrogated 90 people?" He added that what was sure was that they all belonged to the police.
"Under Mubarak, the Interior Ministry routinely covered up abuses to ensure that its officers would never face prosecution," Stork said. "The Mubarak trial showed that, in the balance of power between the prosecution and the Interior Ministry, the latter still holds all the cards."
Other trials and Lack of Accountability
The charges against Mubarak, al-Adly, and others only concerned events between January 25 and 31, 2011, and focused on the use of force against protesters during the first days of the protests. Other former government officials are on trial for the violence against protesters in Tahrir Square on February 2 to 4, often referred to as "the battle of the camel" trial. There are no charges before any court relating to Mubarak and al-Adly's alleged role in the torture and enforced disappearance of thousands of detainees during the 30 years of Mubarak's rule, Human Rights Watch said.
Since March 2011, the public prosecutor has referred at least 26 cases to court in which he charged more than 150 high- and low-ranking policemen with killing and injuring protesters during the January protests in cities that included Cairo, Alexandria, Suez, Damanhour, Tanta, al-Zaqaziq, Damietta, Mansuoura, and Bani Soueif. Public confidence in the trials has been low due to uncommonly lengthy adjournments, sessions in which key witnesses have altered their testimony, and in some cases police pressure on victims and their families to withdraw their claims, as documented by the Egyptian Initiative for Personal Rights. Also, most of these cases concern deaths and injuries in the vicinity of police stations, where policemen may have a stronger case for the use of force in self-defense.
The majority of these cases are still pending or have resulted in acquittals. On May 31, a Cairo criminal court acquitted four police officers of charges of killing protesters near a police station in the Amiriya neighborhood on January 28, 2011. The Amiriya verdict was the latest in a series of verdicts acquitting security officers charged with killing protesters in the vicinity of police stations during the January 25 protests. Two other cases charging 31 defendants for events around Boulaq al-Dakrour and Hada'iq al-Qubba in Greater Cairo recently concluded with the acquittal of 13 police officers and suspended or in absentia sentences for the other 18 officers (in absentia convictions are automatically reconsidered upon the defendant's appearance).
To date, only two police officers, Tamer Ziyada and Mohamed Abd al-Moneim al-Sunni, have been sentenced to serve actual time in prison in separate cases involving a death toll of 19 people. Each was sentenced to five years, subject to appeal. That only two officers received actual prison time for protest-related abuses is of serious concern given that Egypt's official National Fact-Finding Commission confirmed a total death toll of 846 during three weeks of protest between January 25 and February 11, 2011, and found many indications that police forces across the country used excessive force against peaceful protesters, often shooting at their heads and necks. The prosecution in Mubarak's trial maintained that the results of the trials of lower-ranked security officers for deaths and injuries in the vicinity of police stations did not bear on Mubarak's trial because the charges against Mubarak, al-Adly, and their co-defendants related only to deaths and injuries of protesters in public squares.
"The pattern of acquittals in recent cases against security officers indicates a failure of the criminal justice system to end impunity for serious human rights violations," Stork said.