CAIRO — An appeals court on Tuesday overturned the last remaining conviction against Egypt's deposed leader Hosni Mubarak and ordered his retrial on corruption charges, opening the door for his possible release.
The ruling, just days before the fourth anniversary of the start of the 2011 anti-Mubarak uprising, pointed to how far Egypt has moved away from its revolutionary fervor to "bring down the regime." The rise to power of President Abdel-Fattah el-Sissi, who has vowed stability after four years of turmoil and taken a tough line against dissent, has encouraged Mubarak supporters and upended the depiction of the revolution in the media, where activists are most often cast as troublemakers of foreign agents.
Another court cleared Mubarak, who will turn 87 in May, in the biggest case against him, dismissing in the end of November charges of responsibility for the killing of protesters during the 2011 uprising. Meanwhile, hundreds of the young activists and pro-change leaders from 2011 are either languishing in prison on charges of breaking a law against protests or have left the country.
The next steps for Mubarak are difficult to predict. El-Sissi may be happy to keep Mubarak and his two sons in a state of legal limbo where the ousted leader is neither outright freed or firmly convicted and punished — thus avoiding alienating either Mubarak's supporters or opponents.
El-Sissi, the former head of the military, has carefully distanced himself from Mubarak. After the court ruling dropping charges against Mubarak in November, el-Sissi lashed out at the former president in a private meeting that was leaked by local reporters. He said that during his nearly 30 year rule, Mubarak "wrecked the nation" and it would need another 30 years to repair. Publicly, he said the country "won't go back to the past" and ordered a review of the law that caused the case to be dismissed on a technicality.
Nasser Amin, a judicial reform activist who also sits on the National Human Rights council, believes the political authorities in el-Sissi's Egypt will use all means to keep Mubarak and his sons in custody — if not serving sentences, then facing some sort of litigation.
"Despite all signs that things are going back to the past, letting Mubarak and his sons out is a different story. It means that all what happened in 2011 was a joke, and the current regime can't afford this and it is not in their interest either," Amin said.
Mubarak was ordered released once before, in July 2013, when his time of detention ran out amid ongoing trials. But the government stepped in and used its executive powers to keep Mubarak under house arrest. Only a month earlier, el-Sissi had led the military ouster of Islamist President Mohammed Morsi, elected after Mubarak's fall, and the government likely didn't want Mubarak's release to create the impression it was bringing back his autocracy.
A Mubarak release could revitalize el-Sissi's Islamist opposition, which has been nearly crushed by a heavy security crackdown the past year and is looking for a way to boost its protests and appeal to other disgruntled groups. Ahead of parliamentary elections set to start in March, the government may be reluctant to raise anger.
Amin said el-Sissi is trying to balance between lingering public sentiment against Mubarak and his regime, and Mubarak loyalists who still pack much of the bureaucracy, the judiciary and the business community.
There has already been public grumblings that the judiciary is cutting corners in its heavy and quick prosecutions of Islamists, journalists and dissenters.
Negad Borai, an appeals lawyer who also takes on activists and journalists cases, disagreed. He said el-Sissi's government seems encouraged by the limited public outcry after the charges on killing protesters were thrown out. Releasing Mubarak now would be a way for el-Sissi to prove his rule is "strong and able and can control any form of instability," Borai said.
He also argued that the initial cases against Mubarak were shoddily prosecuted and it is easy to understand why judges would throw out the verdicts.
The corruption case — dubbed by the Egyptian media as the "presidential palaces" affair — concerns charges that Mubarak and his two sons embezzled millions of dollars' worth of state funds over the course of a decade. The funds were meant to pay for renovating and maintaining presidential palaces but were instead allegedly spent on upgrading the family's private residences.
Mubarak was sentenced to three years, his sons to four. They were also fined the equivalent of $2.9 million and ordered to reimburse $17.6 million to the state treasury.
Procedurally, Mubarak could go free because he exhausted his period of preventive detention. The prosecutors would have to present a request for his release to the court of appeal, which is to choose the criminal court that hears the retrial and would also rule on his release.
If he is freed from official custody, Mubarak's actual location likely won't change. Throughout his various trials, Mubarak has been detained in a Cairo military hospital for poor health.
Two security officials told The Associated press that Mubarak, even if released, would remain in the same hospital for security reasons. They spoke on condition of anonymity because they were not authorized to speak to the media. Farid el-Deeb, Mubarak's chief defense lawyer, told several Egyptian newspapers that Mubarak would not leave the hospital because he was "sick" and needed medical attention.
Still, the official end of his custody would hold a heavy symbolic weight, seen as a sign by his opponents that he will never be punished.
Lawyer Hoda Nasrallah, who has represented protesters' families, said she lost hope for retribution when the court dropped the charges against Mubarak over the killing of protesters. He had initially been convicted on those charges and sentenced to life in prison. But an appeals court overturned that ruling and ordered a retrial. Now, Nasrallah noted, pro-government media pins the blame for the deaths on the Morsi's Muslim Brotherhood.
"Is the presidential palaces case all the corruption he has done in 30 years?" Nasrallah said. "The concern was over the killing of protesters case. The story is over."