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Lawyers critique handling of Mubarak trial

Legal eagles say flaws of Egypt's justice system are evident in proceedings against former president.

Last Modified: 26 Aug 2013 12:44
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Mubarak faced judges on Sunday, and will next appear before the court on September 14 [Al Jazeera]

On Sunday, Egyptians witnessed a rare spectacle: representatives of two different ousted political regimes went on trial on the same day.

In one Cairo courtroom, a court heard a case against six Muslim Brotherhood members - including the group's spiritual leader Mohamed Badie and two of his deputies, Khairat El-Shater and Rashad Bayoumi - on charges of inciting the killings of protesters on June 30. Badie, El-Shater and Bayoumi did not appear in court for security reasons, and the case was postponed to October 29.

In another courtroom at the Cairo Police Academy, the judge presiding over the case against former president Hosni Mubarak for involvement in the killings of demonstrators in Egypt's 2011 uprising, promised that the case would proceed with "integrity".

Mubarak was convicted on the charges last year and sentenced to life imprisonment, but following a successful appeal, now faces a retrial. He was released last week by court order, but has been kept under house arrest at a military hospital.

Unlike the Brotherhood leaders, Mubarak attended court and appeared with his co-defendants in the case, including his former interior minister Habib El-Adly. The trial was then adjourned until September 14.

'General failure'

Lawyers and legal experts have criticised the state's handling of Mubarak's prosecution. Hoda Nasrallah, a lawyer with the Egyptian Initiative for Personal Rights (EIPR), says the public prosecution was late in bringing Mubarak's case to trial. "We should also note that the police, who are responsible for collecting evidence, were a big factor in causing the general failure of the trial," she told Al Jazeera.

Inside Story - Is Egypt's judicial system on trial?

Ahmed Hishmat, a lawyer at the National Community for Human Rights and Law, an Egyptian NGO, agreed that the proceedings against Mubarak have been marred by evidentiary problems.

"In one case," he said, "the Central Security Forces' operation office, which records the orders from commanders to officers in the field … was summoned to hand over their recordings as evidence. But the officer who brought this CD over to the public prosecution office claimed to have broken it. He received a two-year sentence for destroying evidence."

Other legal experts believe Mubarak's trial for killing protesters should not have taken place within the criminal justice system as it is currently structured. Adel Maged, the vice-president of the Egyptian Court of Cassation and an honourary professor of law at Durham University, says the system as it is exists today is not capable of handling the types of "massive" crimes that Mubarak is accused of.

Maged has called for amending the criminal procedural code to be able to address these types of trials, which he says "require special techniques in investigation and the establishment of individual criminal responsibility". He believes the Egyptian legal system should include the doctrine of command and superior responsibility, which would allow courts to "hold the superiors responsible for the crimes of their subordinates".

Intertwining trials

The lengthy process of trying Hosni Mubarak and his co-defendants means that the trial of the former president will take place alongside that of key figures within the Brotherhood, the group that won power in the elections following Mubarak's ouster.

Maged argues that, whereas Mubarak's trials should have been handled differently, the charges faced by the Brotherhood can be adequately dealt with by the current system.

"One different aspect of the crimes alleged to be committed by Mubarak and the Brotherhood leaders," he explains, "is that there is no explicit evidence of Mubarak giving orders or instigating the killing of the peaceful protestors - while there are records and videos of the Muslim Brotherhood leaders instigating their supporters to defend Morsi with their blood and go further to justify this as martyrdom."

Others disagree. Hishmat thinks a fair trial for the Brotherhood leaders is unlikely under the current system, noting an "adversarial relationship between large sections within the judiciary and the Morsi regime, including for example Ahmed El-Zind, the leader of the Judges Club, and personalities on the Supreme Constitutional Court like [Judge] Tahany El-Gibali".

It's always the case that the [justice] system is in some sense biased towards the regime in power.

- Ahmed Hishmat, lawyer at the National Community for Human Rights and Law

When Mubarak's trial resumes, says Nasrallah, his defence team may seek to tie the 2011 violence against protesters to the Muslim Brotherhood, which is now being accused of terrorism and violence against the military-backed government that replaced Morsi.

"Of course there will be an appropriation and utilisation of current events, and this happened before," she notes. "When the [first] trial was ongoing, there were the clashes around Mohamed Mahmoud Street and then the Cabinet clashes, and they were utilised then with allegations that the people involved in those protests were foreign elements."

According to Nasrallah, lawyers in Sunday's court session did try to draw links between the 2011 violence and the Brotherhood.

The defence team for El-Adly, who was interior minister during the uprising, made an analogy between a recent deadly assault on Kerdasa police station in Giza, allegedly by Brotherhood sympathisers, and attacks on police stations during the 2011 protests against Mubarak. A defence lawyer "mentioned the use of foreign elements, and said that what happened on Kerdasa is exactly what happened on January 25, 2011", Nasrallah said.

'We will leave it to the courts'

Nasrallah sees some positive signs in how the trials of the Brotherhood leaders are being conducted. The defendants are not being tried under the emergency law that is currently in effect, and their cases are being heard by normal judges, not military judges.

But human rights lawyer Hishmat has reservations about whether justice will be served in the end. "I see the Brotherhood regime as a criminal regime, and its actions are sufficient to have the leadership put on trial," he says. But because the justice system lacks independence and credibility, he believes, the Brotherhood may have legitimate complaints about the process.

"The problem," he says, "is that in Egypt we do not have a justice system that is ever neutral. It's always the case that the system is in some sense biased towards the regime in power."

While Mubarak stood before the court on Sunday, some ordinary Egyptians told Al Jazeera they took a more positive view of their country's justice system.

Nawal Mohamed, an unemployed housewife in her thirties, says she thinks the judicial system in Egypt is "excellent. The courts are honest. We trust our leaders to achieve justice."

And Yasmin El-Mufti, a jewellery designer, expressed her high level of confidence in the process. "Mubarak was released by court order. And after the experience of the Muslim Brotherhood, we see the difference between when Mubarak was ruling and now.

"He made some mistakes, of course, but we will leave it to the courts to decide if he killed the protesters."

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Source:
Al Jazeera
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