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Summary

Since the downfall of President Hosni Mubarak’s regime in Egypt on February 11, 2011, Mubarak has been subject to investigations for four crimes: ordering the murder of peaceful protestors, misappropriating public funds, corruption and securing illicit gains, and unlawfully accepting gifts while in office.  While a second trial for the murder charge is ongoing, Mubarak has already been sentenced to three years’ imprisonment for the misappropriation of public funds.    Thus far, no formal indictment has been issued against Mubarak for the illicit gains accusations. Mubarak has reached a settlement agreement with the prosecution on the charge of accepting unlawful gifts.

I. Introduction

In June 2011, the Law Library of Congress published a preliminary report on the legal charges pending against Egypt’s former president, Hosni Mubarak.[1]  Since then, there have been significant developments in both the investigations of Mubarak and his legal trials.  Mubarak has been accused of four offenses: ordering the murder of demonstrators in the wake of what became widely known as the “January 25th revolution,” misappropriating presidential palace funds, corruption and securing illicit gains, and unlawfully accepting gifts from the government-owned al-Ahram news and publishing agency.[2]  This article will provide a brief history and analysis of each of the four charges.  

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II.  Charges of Ordering the Murder of Antigovernment Demonstrators

On May 24, 2011, Mubarak was charged with ordering the murder of peaceful protesters during the massive antigovernment protests in Egypt that began on January 25, 2011.[3]  Charged along with Mubarak were the former Minister of Interior, Habib al-Adly, and six former high-ranking officials of the Ministry of Interior (Homeland Security).

 

Because the prosecution could not prove that Mubarak had personally carried out the murders of the demonstrators, the prosecution and the trial court had to build the case for Mubarak’s culpability on the theory of accomplice liability.  The trial court went on to establish Mubarak’s participation in the protestors’ murders on the basis of an act of omission—his failure as the country’s president to take reasonable measures to prevent the murders from occurring.  Based on this theory, Mubarak and the former Minister of Interior were each sentenced to life imprisonment in June 2012.[4]

However, this novel criminal theory of Mubarak having participated in the murder of the demonstrators by failing to prevent the commission of the crime did not survive a challenge before the Court of Cassation.[5]  Considering that engaging in criminal behavior may only take place through affirmative action, the Court of Cassation vacated the trial court’s verdict in January 2013.[6]

After reversing the trial court verdict, the Court of Cassation referred the case to a different circuit of the same trial court (i.e., the Northern Cairo Criminal Court) for retrial.  The retrial of the case is still ongoing.  In accordance with a guarantee bestowed by Egyptian law upon the defendant in a criminal proceeding,[7] the new trial court may not impose a more severe sentence on Mubarak than the life-imprisonment sentence he challenged.   

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III.  Charges of Misappropriating Presidential Palace Funds

On June 28, 2013, Mubarak and his two sons were charged with misappropriating public funds, which had originally been allocated for the presidential palaces’ telecommunication units, in order to renovate and decorate his and his family’s personal dwellings.[8]  The trial court deemed Mubarak’s acts to be in violation of article 115 of the Egyptian Penal Code,[9] which proscribes any appropriation of public funds by a public servant.  Since Mubarak’s sons were not public servants during the commission of the crime, they could not legally be charged as principal perpetrators of the misappropriation, but they were charged as accessories to the crime.[10]

Found guilty by the court on May 21, 2014, Mubarak was sentenced to three years’ imprisonment, and each of his sons was sentenced to four years’ imprisonment.  The court also ordered the defendants to return a sum of EGP21,197,000 (approximately US$2.96 million), and rendered them jointly liable for a fine of EGP125 million (approximately US$17.44 million).[11]

As a matter of law,[12] the defendants are entitled to challenge the verdict before the Court of Cassation within sixty days of the issuance of the judgment.  Should the defendants challenge the verdict before the Court of Cassation, which is the usual practice, the Court of Cassation will analyze the verdict from a legal rather than a factual perspective.  If the Court of Cassation vacates the verdict, the case will be retried, and the court retrying the case will be bound by the maximum limits of the punishments rendered in the verdict of May 21, 2014, which the court retrying the case may match but not exceed.[13]      

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IV.  Investigation of Illicit Gains

In March 2011 the Illicit Gains Authority launched an investigation into Mubarak’s alleged use of his influence as the country’s president to secure illicit personal gains.[14]  Pursuant to articles 1 and 3 of the Illicit Gains Act No. 62 of 1975,[15] any gains secured by a public official by virtue of his position or capacity are to be considered illicit.  Furthermore, the Illicit Gains Act presumes that any increase in the wealth of the public official, his spouse, or his minor children constitutes illicit gains if (a) the increase is disproportionate to the resources of the public official, his spouse, or his minor children; and (b) the public official fails to justify a legitimate source for such an increase in his wealth.

In this respect, Mubarak is alleged to have amassed billions of Egyptian pounds during his time in office, for which he failed to cite a legitimate source.  On May 21, 2013, Mubarak was ordered by the Court of Northern Cairo to be incarcerated for thirty days pending the outcome of the investigation.[16]  However, in June 2013, the appellate court overruled the decision of the Court of Northern Cairo to incarcerate Mubarak, and ordered his immediate release from custody until a verdict was issued in this case.[17]  Since then, no further judicial actions have been taken against Mubarak in relation to the allegations.

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V.  Crime of Accepting Unlawful Gifts from al-Ahram Agency

The last of the offenses with which Mubarak has been charged is the unlawful acceptance of gifts from the state-owned al-Ahram news and publishing agency, which is a violation of article 105 of the Egyptian Penal Code.  This article prohibits a public official from accepting anything of value from a person if this gift is meant to be a reward for the performance or nonperformance of any of the public official’s official duties.

To settle the case, in February 2013 the prosecution accepted Mubarak’s offer to return to the government the amount of EGP20 million (approximately US$2.79 million), which represents the value of the alleged gifts from al-Ahram, and dismissed the charges against him.[18]

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VI.  Conclusion

In the spring of 2011, Egypt’s former president Hosni Mubarak was accused of four crimes: ordering the murder of demonstrators in the wake of what was known as the January 25th revolution, misappropriating presidential palace funds, securing illicit gains, and unlawfully accepting gifts from the government-owned al-Ahram agency.  Mubarak is now serving the sentence of imprisonment imposed on him for misappropriating presidential palace funds.  However, Mubarak is still subject to retrial for the murder of the protestors.  No formal indictment has been issued against Mubarak for the allegations of securing illicit gains.  Finally, the charges against Mubarak for the unlawful acceptance of gifts from al-Ahram were dismissed following a settlement with the prosecution. 

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Prepared by Mohamed Oweis Taha
Law Library of Congress intern

under the guidance of

George Sadek
Senior Legal Analyst
June 2014


[1] George Sadek, Pending Charges Against Former President Mubarak and Potential Legal Ramifications (Law Library of Congress, June 2011), http://www.loc.gov/law/help/mubarak/pending-charges.php.

[2] The Charges Against Mubarak and Their Legal Status, alJazeera.net (Aug. 21, 2013), http://www.aljazeera. net/news/pages/5a5eb71a-7472-4840-8e5c-508c9d8ad608 (in Arabic).

[3] Shaher Ayad & Mustafa al-Marsafawy, Indicting Mubarak, His Two Sons, and Hussein Salem for Murdering Protestors and for Corruption, Egypt Independent (May 24, 2011), http://www.almasryalyoum.com/news/ details/133794 (in Arabic).

[4] Life Imprisonment for Mubarak and al-Adly and Acquittal for the Rest, CNN (June 2, 2012), http://archive.arabic. cnn.com/2012/mubarak.trial/6/2/mubarak.verdict/ (in Arabic).

[5] The Court of Cassation is the highest tribunal in Egypt for rendering decisions in civil, criminal, and commercial cases.

[6] For the complete text of the verdict of the Court of Cassation, see Yusri al-Badri, Legal Reasons for Repealing the “Murder of the Protesters” Decision,Egypt Independent (Jan. 21, 2013), http://www.almasryalyoum.com/news/ details/284705 (in Arabic).

[7] Law No. 57 of 1959 (Law on Challenge of Judgments Before the Court of Cassation) art. 43, al-Jarida al-Rasmiyya, 21 Feb. 1959.

[8] Mohamed Abdel-Latif & Nagi Al-Gargawy, Indicting Mubarak and His Sons For Misappropriating The Presidential Palaces’ Funds, Al-Ahram Digital (June 28, 2013) http://digital.ahram.org.eg/articles.aspx? Serial=1332071&eid=1785 (in Arabic)

[9] Law No. 58 of 1937 (Penal Code) art. 115, al-Jarida al-Rasmiyya, 5 Aug. 1937.

[10] Mahkamat al-Istiʼnaf [Court of Appeal], Criminal Circuit, Case No. 8897 of May 21, 2014.

[11] Id.

[12] Law No. 57 of 1959 art. 34.

[13] Id. art. 43.

[14] Seham Abdel-Al, Emad el-Feqy & Mohamed al-Shazly, Mubarak Family to Appear Before the Investigation Authorities on Sunday, Al-Ahram Digital (Mar. 11, 2011), http://digital.ahram.org.eg/articles.aspx?Serial= 445673&eid=691 (in Arabic).

[15] Law No. 62 of 1975 (Illicit Gain Act) arts. 1 & 3, al-Jarida Al-Rasmiyya, 31 July 1975.

[16] Mohamed al-Iraqi, For the Third Time: Mubarak Incarcerated 30 Days on Illicit Gains Accusations, Masrawy.com (May 21, 2014), http://www.masrawy.com/news/cases/general/2013/may/21/5622628.aspx? ref=extraImgclip (in Arabic).

[17] Farouq al-Dasouqi, Mubarak Ordered Released for Illicit Gains Investigations Without Bail, Egypt Independent (June 18, 2013), http://www.almasryalyoum.com/news/details/222892 (in Arabic).

[18] Hazem Youssef, “Public Funds” Prosecution Accepts Mubarak Payment of EGP20 Million to Settle “al-Ahram Gifts, Egypt Independent (Jan. 16, 2013), http://www.almasryalyoum.com/news/details/282046 (in Arabic).

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Last Updated: 06/25/2014