CAIRO // The decision to retry Hosni Mubarak has prompted fears that the former president may never be held legally accountable for his alleged role in the deaths of more than 800 Egyptian protesters nearly two years ago.
By accepting an appeal from Mubarak, the Court of Cassation has also opened the possibility that he could be completely acquitted of all charges. There is also a chance that Mubarak, 84, who has repeatedly been hospitalised for among other things, falling in the bathroom and injuring himself, does not live to see a final verdict.
The decision to try Mubarak again highlights how elusive justice has been in the country's tumultuous political transition and it is likely to have far-reaching implications for family members of those who died in the 2011 uprising as well as for president Mohammed Morsi.
"The only feeling I have is being afraid that now Mubarak will be released," said Moaamen Mahrous, whose brother Mohamed Mahrous, 29, was killed in front of a police station in the Darb El Ahmar area of Cairo on January 28th, 2011. "They had no real evidence before and I don't believe anything has changed."
Soha Said, whose husband Osama Mohammed was also killed on that day, said she was worried of a secret deal by members of the Mubarak regime and the new government led by the Muslim Brotherhood.
"The Brotherhood don't care about justice for the martyrs," she said. "For them the revolution is already won and they are picking the fruits. I'm nervous."
Soon after Mr Morsi was inaugurated in June, he established a special committee to investigate allegations of crimes during the uprising and other clashes under the Supreme Council of the Armed Forces.
The details of the report have yet to be released, but several leaks to Egyptian newspapers have suggested that it uncovered new details of Mubarak's knowledge of the violence used against protesters.
Ali El Gineidy, a member of the committee who wrote the report, said yesterday that the new evidence was strong enough "to hang Mubarak".
"I am very optimistic this time," he said. "We can get the death penalty."
But the report is also said to contain allegations of improprieties by the Brotherhood, the group in which Mr Morsi was a long-time, high-level official, and the military.
Yousry Abdel Razek, one of Mubarak's lawyers, pledged to use the retrial to air evidence his team has uncovered about the Brotherhood attacking protesters.
"We will ask the judges to consider the recent attacks on protesters outside the presidential palace," he said. "People were killed and injured there. Isn't it the same as what happened to Mubarak? Morsi should take the same responsibility."
Mubarak and Habib Al Adly, the former minister of interior, were sentenced in their first trial to life in prison on the reasoning that they did not use their considerable powers to stop the bloodshed during the early days of protests that kicked off on January 25th, 2011.
That verdict in July was met with mixed emotions across Egypt because many felt the initial charges were not broad enough to encompass nearly three decades of police-state oppression and corruption that many blame on Mubarak. Adding to the unease was a sense that the investigation into the regime's actions during those fateful 18 days were not properly investigated.
In the original case, the prosecutor was unable to prove Mubarak directly ordered the use of deadly force. Another set of charges involving corruption by Mubarak, his sons and a business tycoon were thrown out because the statute of limitations on the accusations had expired. In addition, six top security officials were acquitted of charges that they were responsible for the protesters' deaths.
The retrial of Mubarak and Al Adly will be overseen by a different panel of judges and likely include new evidence that could go further in establishing responsibility in the crackdowns of 2011.
The challenge of the case is that amid the uprising is one of evidence. There were no crime scene specialists collecting testimonies or documents amid the chaos. Many documents were burnt in the National Democratic Party headquarters, which was set aflame during protests, and subsequent mysterious fires in ministries and arms of the security apparatus in the weeks after Mubarak resigned.
Even some key witnesses are no longer available to testify. Omar Suleiman, the former spy chief who was appointed by Mubarak as his first vice president during the uprising, died last summer of lung and heart complications. Other powerful figures who were aware of exactly what was going on in the presidential palace are in prison and unlikely likely to divulge information that would further incriminate themselves.
"The problem is we never created a system of transitional justice after the revolution," said Judge Adel Maged, vice president of the Court of Cassation. "It's impossible to use the same criminal procedures for political crimes as for regular crimes."
& Bradley Hope on