The Russian Constitutional Court and the Communist Party case: Watershed or whitewash?

Communist and Post-Communist Studies 40 (2007) 1e16 www.elsevier.com/locate/postcomstud

The Russian Constitutional Court and the Communist Party case: Watershed or whitewash? Jane Henderson* King’s College London, School of Law, University of London, Strand, London WC2R 2LC, UK Available online 30 January 2007

Abstract Constitutional Courts stand at the interface between law and politics, as the newly formed Russian Constitutional Court exemplified during Russia’s time of troubles between 1991 and 1993. One Constitutional Court case from that period had particular significance. The Russian court considered the constitutionality of the Communist Party of the Soviet Union (CPSU) and the Russian Communist Party (CP RSFSR). The seven month long hearing tested the court’s stamina and resolve. Described before it began as ‘Russia’s Nuremberg’, was the Communist Party case a turning point in Russia’s relationship with her past, or was it a staged showpiece with no real impact? This paper explores the Russian Constitutional Court’s longest case and its effects. Ó 2007 The Regents of the University of California. Published by Elsevier Ltd. All rights reserved. Keywords: Constitutional court; Communist Party; Rule of law; Democratisation; Transition politics; Russia

Introduction The early 1990s were tumultuous for the Russian state. By the end of 1991 the USSR had dissolved, giving Russia a new independence (Barry, 1992: 45e9). That * Tel.: þ44 20 848 1115; fax: þ44 20 7848 2465. E-mail address: [email protected] 0967-067X/$ - see front matter Ó 2007 The Regents of the University of California. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.postcomstud.2006.12.003

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dissolution was triggered, if not actually caused, by the abortive putsch of the Committee for the State of Emergency1 in late August 1991 (Thorson, 1991c; Knox, 2001; Synovitz, 2001). The putsch was short lived; initiated on 19 August (the day prior to the date on which Gorbachev had said he would sign a new treaty of the USSR), by 21st August it had collapsed2 (Thorson, 1991a; Bransten, 2001). That same summer the first Russian Constitutional Court was set up. The required legislation was passed 6 weeks before the August putsch (Law on the Constitutional Court of the RSFSR, 12th July 1991. Ved. SND i VS RSFSR no. 28 1991 item 962. English translation in Reynolds, 1994 (6), 42e94) but the judges not put in post until the end of October (Henderson, 1998b, 112e3). The relationship between Russia’s president, Boris Yeltsin, and the CPSU Central Committee was famously fraught and indeed much of Yeltsin’s electoral popularity, which lead him to become Russia’s first president in June 1991, has been attributed to his public spats with the party elite (Yeltsin, 1990, 107ff, particularly 135). During the brief period of uncertainty as the putschists tried to establish their hold on power, Yeltsin showed both political nous and personal courage in standing up against them (famously, on a tank in front of the White House3). Whilst one might dispute how deep Yeltsin’s democratic roots go, at that time he was determined that the central USSR authority should not be taken over by a gang of disorganised revisionists.4 The events also gave Yeltsin an ideal opportunity to enhance Russia’s standing, consolidate his own popularity and power, and take revenge against the Communist Party which was suspected of being behind the putsch. As Carla Thorson noted (Thorson, 1991b, 5.), ‘‘The entire Emergency Committee was made up of Party members, and other prominent Party officials were also implicated in the conspiracy.’’.5

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The eight-man committee consisted of Vice President Gennady Yanayev, KGB chairman Vladimir Kryuchkov, Minister of Internal Affairs Boris Pugo, Defence Minister Dmitriy Yazov, Head of the Government Valentin Pavlov, Gorbachev’s deputy head of the Security Council Oleg Baklanov, head of the Peasants’ Union Vasilii Starodubtsev and Aleksandr Tiziakov, a leading representative of state industry. For discussion of the law which lead to the putsch survivors’ amnesty, see Barry, 1994. For chronologies of the putsch, see Bransten, 2001, and Marxist.net, The Collapse of Stalinism Part 1, http://www.marxist.net/stalinism/collapse/script.htm?5.htm. For a summary of their positions over a decade later, see Balzer, 2005. 2 By Tuesday 20th reports came through that two of the Emergency Committee members were ill. Yazov was said to have resigned due to an unspecified illness. Pavlov was reported to be suffering from high blood pressure and was confined to bed. http://www.marxist.net/stalinism/collapse/script.htm?5.htm. By Wednesday, it was announced that the Emergency Committee had been disbanded; Yazov and Kryuchkov flew to Crimea to meet Gorbachev where the latter vacationed with his family. 3 At around 2 p.m. on the 19th of August. See copy of image on Wikipedia http://upload.wikimedia. org/wikipedia/en/c/ca/1991_coup_yeltsin.jpg. 4 Ironically, some analysts are now suggesting that Russia under Yeltin’s successor, President Putin, is in the process of achieving the aims of the putsch (Balzer, 2005; Knox, 2001). 5 There were five subsequent investigations into the individuals and organisations involved, but only one was made public. See From the Archives: The Suppressed Transcripts, Demokratizatsiya, 1995e96. Part I in Demokratizatsiya 1995 3(4), 411e50 gives evidence of KGB involvement.

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With the justification of the Communist Party’s hand in the putsch attempt, Yeltsin issued a series of presidential edicts suspending and subsequently banning the CPSU and CP RSFSR, and seizing their property. By Autumn 1993 Yeltsin himself was embroiled in political conflict which lead him to suspend the Constitutional Court and by the end of that year to present Russia with a new constitution and legislature (Semler, 1993e4; Barry, 2002, 758e99). In between these two volcanic periods for Russian polity was another important eventd the consideration by the Constitutional Court of the Communist Party case. The particular significance of this case stems from the fundamental issues raised at both theoretical and practical levels. For decades the CPSU had been, in accordance with article 6 of the 1977 USSR Constitution, ‘‘. the leading and guiding force of Soviet state and society’’. This broad wording in the Constitution had allowed the Party an almost free hand in its actions. Was it then possible for its constitutionality to be subject to consideration by a court? The Russian Constitutional Court, under the chairmanship of Valery Zorkin (Sharlet, 1993a), a charismatic lawyer who had previously been a professor for seven years at the Academy of the MVD (Ministry of Internal Affairs) (http://www.ksrf.ru/about/judge/ks/bio/zorkin.htm) and was proposed to office as a Constitutional Court judge by the deputies’ group ‘Communists for Democracy’, was thus faced with an unprecedented challenge. Its resolution would have repercussions on Russia’s aspirations to build a civil society. Yeltsin’s attack on the Party On 23rd August 1991 Boris Yeltsin issued presidential edict No. 79 suspending all activity of the Russian Communist Party. He set out the reasons: Operating on the territory of the RSFSR and not registered in accordance with the established procedure, the Communist Party of the RSFSR supported the so-called State Committee for the State of Emergency in the USSR, which committed a coup d’etat and forcibly removed from office the President of the USSR. (Rossiiskaya Gazeta, 27 August 1991, 3; CDSP XLIII (35) 1991, 11). As a result of this and other specified transgressions Yeltsin ordered the Russian MVD and Procuracy to ‘‘. conduct an investigation into instances of anticonstitutional activity by agencies of the Communist Party of the RSFSR’’ and ‘‘until the final decision by court procedure.’’ suspended all its activity. Its resources were frozen ‘‘.until the adoption of a final decision by judicial agencies’’. This was swiftly followed on 25th August by Yeltsin’s edict No. 90 which authorised the seizure of property belonging to both the CPSU and the CP RSFSR: In connection with the dissolution of the CPSU Central Committee and the suspension of activity of the Communist Party of the RSFSR, I decree: . as being in state ownership of the RSFSR all the movable and immovable property belonging to the CPSU and the Communist Party of the RSFSR,. (Rossiiskaya Gazeta, 30 August 1991, 2; CDSP XLIII (35) 1991, 11e12).

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The Parties’ bank accounts were frozen and the right to use all CPSU and CP RSFSR property on Russian territory was transferred to the RSFSR Council of Ministers.6 Steps were taken to prevent damage and looting, and foreign governments were requested to freeze any Party assets held abroad. The edict entered into force immediately. No time was wasted in the Russian government garnering all it could of the Party’s wealth. These two August edicts suspended Russian Communist Party activity and use by the Russian and USSR parties of their property. On 24th August Yeltsin had also ordered the CPSU and Russian Party Archives to be seized to prevent their ‘illegal destruction’ (CDSP XLIII (35) 1991, 11). By November 1991 Yeltsin was secure enough of his position to ban both parties outright and institute a complete transfer of all their property into Russian state ownership.7 By edict No. 169 issued on 6th November 1991 (Rossiiskaya Gazeta, 9 November 1991; CDSP, 1991) he ensured that no new CPSU would grow from the ashes of the old. In the strong words of the edict: The events of August 19e21 made it glaringly obvious that the CPSU was never a party. It was a special mechanism for shaping and exercising political power by fusing with state structures or making them directly subordinate to the CPSU. . It is the CPSU’s leadership structures, which to all intents and purposes swallowed up the state and used it as their tool, that bear responsibility for the historical impasse into which the peoples of the Soviet Union have been driven and the state of disintegration we have reached. . The logical finale of [the Party’s] political activity was the unconstitutional coup of August 19e21, 1991, which was supported by the CPSU’s leadership. Despite the measures taken with respect to these structures, they have not ceased their unlawful activity aimed at an even greater exacerbation of the crisis and the creation of conditions for a new antipopular coup. It has become obvious that as long as the CPSU structures continue to exist there can be no guarantees against another putsch or coup. Attempts to defame millions of rank-and-file Party members who had nothing to do with the high-handedness and violence committed in their name or to ban them from certain occupations are impermissible. But attempts to resuscitate the gigantic mechanism of the Communist Party machine and to give it an opportunity to crush the young shoots of Russian democracy are just as impermissible.

6 Property of lower levels of the Party hierarchy in Russia was similarly transferred to the corresponding local state agencies. 7 Note this was just one month before he had got together with the heads of the Ukraine and Belorussia to issue the Minsk Agreement declaring that ‘‘the USSR as a subject of international law and geopolitical reality terminates its existence’’ had ceased to exist (Butler, 1992, 3).

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Yeltsin decreed that all activity of the CPSU and the RSFSR Communist Party was to cease, their organizational structures be disbanded and any property on the territory of the RSFSR be transferred to the ownership of the Russian state and that ‘‘. the RSFSR Council of Ministers, . are to take the necessary measures for the immediate and comprehensive implementation of this edict’’. The necessary measures were taken. Almost immediately, there was a corresponding reaction from Party supporters. The Party appeal to court Within two weeks of the 6th November ban, the Russian Communist Party protested its legality (Sovetskaya Rossia, 16 November 1991, 1). A group of people’s deputies8 of the Russian Supreme Soviet signed a petition to the Constitutional Court claiming that President Yeltsin’s actions breached the principle of separation of powers, and that he had acted outside his legal competence in that: Within the competencies of the President, defined by the Constitution and Laws of the RSFSR, there are none which gave him the right to suspend or prohibit the activity of political parties or other social organisations and nationalise their property. (Sovetskaya Rossia, 16 November 1991, 1) The petition asserted only a court had the power to prohibit such activity. The president did not even have the power to decree a temporary suspension (pending a final court decision) of a political party unless there had been a state of emergency (extraordinary situation) declared. Seizure of the Party’s property was likewise unconstitutional as it infringed the constitutional guarantee of the protection of the right of ownership of social associations and was thus in breach of the presidential oath to protect rights. The petition was carefully framed and well founded on the specific legal issues it raised. By February 1992 there were media reports that the relevant paperwork had been sent to Yeltsin as respondent and the court would consider the case within the next few months. In early May 1992 the date of 26th May was set for the court hearing. Counter appeal Yuri Feofanov, Izvestia’s long time legal correspondent, wrote an assessment of the Communist Party case in which he summed up the opening procedural moves with a chess analogy. He likened the Party supporter’s petition to court to a ‘‘.long castling (as it would be called in chess) in the direction of the law’’ (Feofanov, 1993, 624). This ‘‘. was a clever move. It caught the democrats unaware, 8 Reported in 52 Glasnost, 5 as 20. ‘‘Not that many after all,’’ remarks Glasnost bitterly, ‘‘if we count just how many representatives of the people got their seats on a communist ticket. But as they say, you can’t force a person to be brave. Even more sodto be principled’’. But the number was given as 36 elsewhere (ITAR-TASS, 7 May 1992).

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and they were forced to make a counter move with a knight: they brought suit seeking to have the Communist Party itself declared unconstitutional’’. The knight in question was Oleg Rumianstev, a People’s Deputy, member of the Russian Supreme Soviet and the executive secretary of the Constitutional Commission. Under the 1991 Law on the Constitutional Court in force at the time, a single People’s Deputy had the right to bring a petition to the Constitutional Court. Rumianstev used that right. Fearing that they might lose on a straight consideration of the legal issues focussing on the President’s powers, the pro-Presidential camp needed to change the parameters. Rumianstev’s petition therefore alleged that the CPSU was not a political party in the normal meaning of the term, but an anti-constitutional organisation which took over state functions. His petition was lodged with the Constitutional Court the night before the court was due to begin its consideration of the pro-Party petition, with the result that the hearing was postponed while the new papers were examined. Crucially, the Court majority also agreed to a petition by three of its judges, Ametistov, Gadzhev and Kononov, that the case raised by Rumianstev’s petition should be joined with the pro-Communist petition, as it covered the same factual nexus. The hearing was set to be reconvened on 7th July. However, there were a number of problems facing the court in working out its plan of action for the case.

Problems for the Court Practical problems One immediate practical problem for the pro-Party camp was how to pay for legal representation. As Yeltsin had banned the Party and sequestered its assets, there was no party organisation with the wherewithal to pay for lawyers. This dilemma was resolved by Yeltsin picking up the bill for 965000 roubles (BBC SWB, 9 July 1992 SU/ 1428/B/1) at the request of the Constitutional Court chairman, Zorkin (Rossiiskaya Gazeta, 26 June 1992, 1; BBC SWB, 6 July 1992 SU/1425/B/1). There was another problem related to representation. Although a group of deputies had brought the pro-Party petition, it was felt necessary to have an individual who would personify the Communist Party at the hearing. There were no volunteers for this task except Yuri Slobodkin of the Russian Communists parliamentary group (TASS, 27 May 1992). Initially the court decided that it would invite Gorbachev, the former General Secretary of the CPSU (TASS, 26 and 27 May 1992). This was despite a deal reportedly struck before the hearings between the court chairman Zorkin and Gorbachev, exempting the latter from attendance (TASS, 30 September 1992; Komsomolskaya Pravda, 29 September 1992, 2). Gorbachev made it clear that he would not participate in the court hearing, either as a party or as a witness, ‘‘even if he were delivered to the courtroom in handcuffs’’ (Wishnevsky, 1993, 4, citing Komsomolskaya Pravda). As the English edition Moscow News weekly headline put it, ‘‘Gorbygate

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without Gorby’’ (Moscow News Weekly, 1992b, 11e18 October 1992; Gushchin, 1992). In letters to the press Gorbachev ‘‘asserted his respect for the Constitutional Court as an institution, but argued that this was a political trial which was being used to make a scapegoat of the party and distract attention from the real social and economic problems’’. (Reid, 1995, 290e1). He may also have been avoiding giving testimony which might have formed part of a criminal case against him (Wishnevsky, 1993, 4e5). In retaliation for his refusal, he was banned from going abroad,9 although it was not clear who had made the decision to restrict him and as the Moscow News headline put it ‘‘Which country can’t he leave?’’ (Moscow News Weekly, 1992c no 43, 6). The travel ban was temporarily lifted in October 1992 when he was given special dispensation by Zorkin, in response to a phone call from Yeltsin, to travel to Germany to attend the funeral of former Federal Republic of Germany Chancellor Willy Brandt.10 Gorbachev continued to defy court orders to appear and eventually was fined 100 roubles for his impertinence (Moskovskaya Pravda, 6 October 1992,1; TASS, 7 October 1992). Legal issues Jurisdiction One potential problem for the court was whether it had jurisdiction to hear the case at all. The 1991 Law on the Constitutional Court specifically did not allow consideration of the legality of political parties. However, the article in the Russian Constitution outlining the Court’s powers was conveniently amended on 21st April 1992, to allow ‘‘the Constitutional Court to consider cases concerning the constitutionality of political parties and other social organisations’’ (Reynolds, 1994, (3), 12). Normally, changes in the law do not have retroactive effect, that is, do not apply to events that have occurred before the new provisions come into force. However, here it did allow the Court to consider the case because it related to ‘‘. the question of change of jurisdiction over a case, which is determined in accordance with the law in effect at the moment of its consideration’’ (Reynolds, 1994, (3), 12; emphasis added). This expansion of the court’s jurisdiction gave scope for it to consider Rumianstev’s petition. The court already had the power to rule on the constitutionality of the president’s actions as petitioned by the pro-Party group; in fact, keeping a legal eye on the executive president had been one of the major reasons for the Russian Constitutional Court’s establishment in the first place (Henderson, 1998b). Procedure Having decided that it had jurisdiction to hear the case, the next difficulty to face the court was exactly how to conduct its procedure. Effectively, it had to make it up as it went along, especially as regards the issue of anti-constitutionality of the CPSU raised by Rumianstev’s petition. The Constitutional Court is not a tribunal of fact, 9 10

He had to cancel a trip to South Korea (BBC SWB 5 October 1992 SU/1503/B/1). Though he was not allowed to visit Italy on the way (Kuranty, 15 October 1992).

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so was not concerned with proof of whether particular events had occurred. What it had to decide was, given the occurrence of those events, whether or not what transpired was constitutional. This was a particularly thorny issue as regards the activities of the CPSU, because as outlined above the 1977 USSR Constitution and equivalent RSFSR Constitution had expressly given it an exclusive position. Until an amendment on 14 March 1990, article 6 of the USSR Constitution had declared ‘‘The CPSU shall be the leading and guiding force of Soviet society and the nucleus of its political system and of state and social organisations.’’ Despite the inclusion (at a late stage of drafting) of a final paragraph to the article which declared that ‘‘All Party organisations shall operate within the framework of the USSR Constitution’’, article 6 had thus given the Party immense latitude.11 It is likely that this is the reason why Rumianstev’s petition complained of the Party being ‘anti-constitutional’ rather than ‘unconstitutional’. The court decided to set about its task by collecting opinions from experts in the field, in both written submissions and oral testimony. Initially there were no time limits set. Incidents from any period in the Party’s history were brought up (Moscow News Weekly, 1992a; BBC SWB, 11 July 1992 SU/1430/B/1). However, after a recess between 3 August and 15 September for review of the experts heard so far, the Court decided to limit its consideration to Party activity after March 1990 when article 6 had been amended.12 It was also decided, in the interest of speeding up the hearing, that oral submissions could be curtailed. But by that stage a number of emotive examples from five decades of Party arrogance had already been aired in a very public forum (Albatz, 1992). Other issues As well as the drama in court, there were side shows outside. Gorbachev’s hairdresser was reportedly bugged (TASS, 28 July 1992) President Yeltsin’s representative in court Shakhrai, although not badly hurt, was involved in a suspicious car accident. (Izvestiia, 17 July 1992; BBC SWB, 18 July 1992 SU/1436/I) Raising a different type of suspicion, during the court recess to consider the evidence mentioned above, Yeltsin issued an edict which had the effect of giving the Constitutional Court judges a pay rise. The edict was not published according to the correct procedure, although a copy appeared in Moscow News. At the time, 11 The RSFSR Constitution of 1978 had been equivalently amended on 16 June 1990: ‘‘. the Constitutional Court proceeds from the premise that sanctions in connection with the unconstitutional practices of political parties were envisioned on 16 June 1990 in the amended Article 7 of the Constitution of the Russian Federation, according to which the activity of parties and other social associations that has a constitutionally prohibited orientation shall not be permitted..’’ (Reynolds, 1994, (3) 12). 12 Article 6: The Communist Party of the Soviet Union, other political parties, as well as trade union, youth, and other social organizations and mass movements through their representatives elected to soviets of people’s deputies and in other forms, shall participate in working out the policy of the Soviet State and in the administration of State and social affairs [as amended 14 March 1990]. Translation 1990 in Butler, 1979e. For an analysis of the background to the amendment see Robinson, 1992.

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judicial pay levels and promotions should have been decided by the Collegia of Judges, not by the president, and it was all the more surprising that he should make such a move while the court was considering a case against him. However, only Judge Tamara Morshchakova reportedly objected (Feofanov, 1993, 632). The court hearings were protracted. In all there were 52 court sessions, at which a total of 46 witnesses appeared and 16 experts gave testimony on legal matters. (Feofanov, 1993, 636). Over the whole period the court was not able to consider any other case.

Decision Finally the Court reached its decision and the decree setting this out was issued on 30th November 1992 (BBC SWB 2 December 1992 SU/1553/B/1; Vedomosti SND i VS RSFSR No.11 1993 item 400; VKS RF 4/5 37e64; English translation Reynolds, 1994, (3) 9e43). To some extent the result was a complete surprise. To quote Yuri Feofanov again: When the trial started, three verdicts seemed possible: The President’s edicts would be found legal, and the party unconstitutional; The edicts would be found unconstitutional and the party legal; The edicts would be found to have exceeded the President’s authority, but the CPSU was unconstitutional in any case. Another variant was impossible [sic]: to find the edicts legal and the party constitutional. No-one anticipated that the court would reach a decision that differed from all of the predicted variants and that the duel would end up with a score 1e1, with the advantage to the communists. (Feofanov, 1993, 624e5) The court managed this ‘impossibility’ by deciding that the central organisational structure of the Party should be considered separately from its primary party organisations, and that the evil deeds were the responsibility only of the central Party organisation. The prohibition of this was therefore lawful. But primary party organisations did not bear any blame and could thus be legally resurrected in Russia. The court also decided that the CP RSFSR did not exist as an autonomous party, but was just a component part of the CPSU. It therefore had not needed to be properly registered, so was not acting unlawfully as a result. But neither could it be an autonomous owner of property distinct from the CPSU. Because of the way it had behaved, Yeltsin had been justified in issuing his edict of 23 August and certainly had the power to ban something which was not a political party at the time. The court agreed that the Party had arrogated to itself state functions, and had mixed its own property with that of the State and of other unknown owners. However, as property redistribution was not within the jurisdiction of the Constitutional Court, any redress would have to be sought from the ordinary courts. It never was. As to the anti-constitutionality of the CPSU, the court declined to answer. The issue was moot ‘‘[i]n connection with the fact that the CPSU factually broke up

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and lost the status of an all-Union social organisation in August-September 1991.’’ (Reynolds, 1994, (3) 42) Thus the most important issue, raised by Oleg Rumianstev, was completely sidestepped. The court decree setting out its ruling was issued in the names of the full court of all 13 judges.13 However, three separate judicial opinions were also given. These were not published with the main court decision in the Vedomosti cited above, but did appear in the court’s own Vestnik, taking up the entire issue no.6 for 1993. The dissents are significant in showing strong alternate analyses of the fundamental issues raised in the case. The dissents The separate opinions, by judges Kononov, Luchin and Ebzeev, had very different focuses and raised contrasting concerns. Kononov, a frequent dissenter, (Barry, 2001 at 11; Vereshchagin, 2005 at 324ff) had two main complaints. He condemned the whole party, not just the senior echelons, and he took the opportunity of his individual opinion to set out in very explicit terms his views on the fundamentally illegal nature of the Party. He strongly disagreed with the court’s decision avoid ruling on the issue of its unconstitutionality and used his separate opinion to record some examples of the Party acting as the ‘‘main connecting core of a totalitarian state’’. He clearly felt an imperative to recollect formally the evidence produced in court of the continued repressions and deceptions by the party, lest memories become dulled. The court had been asked to rule on whether the party was anticonstitutional; in Kononov’s view, it was criminal. The second dissenter Luchin focused on a completely different principle but one which also has cardinal importance for Russia. It could be summarized in the maxim, ‘‘Two wrongs do not make a right’’. He felt it his ‘‘duty and obligation’’ to dissent from the main ruling that various points of the President’s edicts were constitutional, as in his view there had been a clear breach of the principle of separation of powers. Presidential powers should be construed strictly, and needed to be specifically granted to exist. Luchin was quite scathing in his criticism of what he saw as the court’s dereliction of its duty to decide the matter according to law. As a final stab at the court, Luchin complained that it should never have agreed to join the two petitions. The fact that the court terminated consideration of the main issue raised by Rumianstev evidenced its lack of wisdom in accepting it for consideration in the first place, against Luchin’s advice. The final result, in his view, had been an over-politicization of the whole proceedings, to the detriment of legal considerations. The third dissenter Ebzeev, gave an opinion which is half as long again as the main judgment.14 It is a long, discursive and slightly disjointed judgment. One is lead to wonder whether Ebzeev had some sort of book or treatise in mind when he wrote his opinion, as the style is rather didactic and in strong contrast to the 13 14

The 1991 Law envisaged that there would be 15, but the full number were never appointed. Around nineteen and a half thousand words as compared with around thirteen thousand.

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focussed and sharp remarks of the other two dissenters. In fact Ebzeev did subsequently reproduce his opinion (in 14 sections with helpful heading) in his 1997 book Konstitutsiia Pravovoe Gosudarstvo Konstitutsionnyi Sud (Constitution. Rule of Law State. Constitutional Court) (Ebzeev, 1997).15 The opinion ranges widely both legally and philosophically. Ebzeev considered whether or not the CPSU and CP RSFSR were really political parties; in his view they were not. ‘‘The party leadership ran the state’’, and this remained so even after the amendment to constitutional article 6 in March 1990. However, Ebzeev thought that the Russian Constitutional Court could not consider issues about the activity of the CPSU beyond Russia’s borders. He opined that the CPSU was unconstitutional, but the executive had no powers to restrict it; citation of the presidential oath in the majority judgment was not enough: ‘‘The principle that ‘everything is permitted is not forbidden’ does not extend to state bodies and their officials’’.16 Neither did the president have the legal power to confiscate Party property, so on a number of grounds Ebzeev declared he would have found many parts of the Presidential edicts unconstitutional. These differences of opinion between the Constitutional Court judges were the tip of an iceberg of rumoured rifts and factions in the highest court. (Borovik, 1993) The events of 1993 brought up more disagreements (Sharlet, 1993b; Balashov, 1993) but a change of court chairman when the court re-formed by mid February 1995 with an influx of new judges had a calming influence (Henderson, 1995). However, the strengths of the disparate dissents to the Communist Party case are indicative of different approaches to constitutional justice17; should the court concentrate on the letter of the law, or the outcome? The majority opinion seems weighted in favour of the latter, achieving a result that discouraged further disputation. Outcome and significance The practical outcome of the Constitutional Court judgment was unusual in that arguably the case impacted more on the court itself and Russian society in general than on the disputing parties. Effect on the Court There were rumours before the case started that Zorkin would resign as court chairman and be replaced by Shakrai, the head of Yeltin’s State Legal Department ‘‘Zorkin is really in dire straights: to rescind the President’s decree is about as hard as to recognise it as fully legal’’ (Kommersant, 18 May 1992, 2) This was denied by Shakrai who was on holiday at the time and said that it was merely press speculation ‘‘as an attempt at putting pressure on the Constitutional Court on the eve of its 15 At 174e222. The majority court decree is at pp. 222e254 after his opinion. The other two dissents are not reproduced. 16 The maxim ‘‘Everything not forbidden is allowed’’ was an important perestroika principle; see Resolution 2 of the Resolutions on Legal Reform passed at the 19th All-Union Conference of the CPSU, July 1, 1988 (Pravda, 5 July 1988). 17 For a fascinating comparison of different approaches in different legal and cultural milieus in Central Europe see Procha´zka, 2002.

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examination of the issue of the CPSU’s future’’ (BBC SWB, 22 May 1992 SU/138/B/ 1). In fact, Zorkin’s reputation after the hearing was probably strengthened as he showed both leadership and diplomacy in steering the court to a solution satisfactory to both sides. Even at the start of the hearings, Zorkin made it clear that he would prefer a result that had a positive future outcome: In whatever part of the courtroom the parties sit, they must, after the session, meet at a common table and have a cup of tea together. I believe they should follow my recipe if, in the future, we are to live together, rather than destroy each other in the manner of the Whites and the Reds, on that portion of the Earth called Russia. (Argumenty i Fakti, 10 July 1992) Zorkin fell into disfavour in 1993 as a result of appearing too obviously partisan in the struggle between Yeltsin and the Russian Supreme Soviet (Sharlet, 1993a,b), and in October of that year stepped down as court chairman. However, nearly ten years later in February 2003, after the post had been held by judges Tumanov and Baglai, Zorkin was again voted by the other judges into the role of Court Chairman. It is an interesting question as to what message the Constitutional Court judges were sending to the other branches of state by this return of the colourful and independent minded Zorkin as the head of the court. Certainly he was not overawed by the Russian President during his tenure of the post during the early 90s, and showed himself to be capable of maintaining a high profile for both himself and the court during that time. The court’s experience during this long case must have given it pause for thought when the judges came to draft themselves a new federal constitutional law on the constitutional court, which is what Yeltsin instructed them to do when he suspended the court in the autumn of 199318 (Henderson, 1995). The subsequent 1994 law had different gateway provisions; no longer could a single deputy such as Rumianstev initiate a case. Also the number of judges was expanded to nineteen so that the court could divide into two chambers ( palaty) which could hear cases concurrently. The rules on judicial tenure also changed. Under the 1991 law, the judges had unlimited tenure until a retirement age of 65. Under the 1994 law, a judge could serve a once only 12 year term (extended to 15 years in February 2001 (summary in European Current Law, March 2001 item 105), when the upper age limit was also removed), up until the age of 80. It is thought the age extension was to allow the 78-year-old Professor Tumanov19 be invested as judge to be a ‘safe pair of hands’ to guide the court back onto a steady track after the dramas of 1993. A study (Henderson, 1998a) of the use of international law by the first Russian Constitutional Court, from its inception to its 1993 suspension, showed that the Communist Party case seemed to be a watershed. Before then, there were references 18 Reportedly the draftsman of the first law on the Constitutional Court, the redoubtable Sergei Pashin, offered his assistance but was rebuffed. Information courtesy of Joseph Middleton, Barrister-at-Law, gained during a research trip to Moscow in September 1993 on behalf of the author, funded by King’s College Research Fund. 19 He retired from the court when he reached the upper age limit in February 1997.

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to Russia’s international legal obligations. Afterwards, there were very few. It is not clear why this change occurred. It may be that in trying to clear the backlog of cases that built up during the period when the court was tied up with the Party case, the judges did not give themselves the time to have the luxury of looking much beyond their national law. In more recent years, following Russia’s accession to the Council of Europe in 1996, the court has been much more aware of international legal standards and citation of these has increased (Bowring, 1997; Bowring, 2000; Jordan, 2003). Effect on Russian society By the time the court had decided to limit its consideration of Party activity to the period after the amendment to article 6 March 1990, witnesses had produced clear evidence of the Party’s unscrupulous behaviour during decades of Soviet power. This was perhaps one of the most important aspects of the case, as public testimony was given of appalling callousness and disregard for individual rights and human dignity. No surprise, but to have such matters aired in the open courtroom of one of the country’s highest courts marked a unambiguous acknowledgment of that dark chapter of Russia’s history.20 However, the worst of the CPSU activities, being pre-1990, did not form any part of the basis for the court’s final decision. This allowed a legal conclusion which pointed in the direction of reconciliation rather than revenge.21 Russia has not had a policy of lustration of former party members; it was thought that such a strategy would exclude too many necessary experts. The court’s deliberately limited conclusions fit with that approach: ‘‘a masterpiece of moderate politics’’ (Wishnevsky, 1993, 6); ‘‘an example of a political balancing act that is being performed with rare skill’’ (Parkhemenko, 1992). To that extent, in its decision, the Russian Constitutional Court acted more like South Africa’s Truth and Reconciliation Commission (Report, http://www.info.gov.za/otherdocs/2003/trc/) than Nuremburg’s International Military Tribunal (http://www.justiz.bayern.de/olgn/imt/imte.htm). Impact on parties A vindicated and unrepentant Yeltsin reinforced the court ruling by issuing another edict (no. 566, Rossiyskye Vesti, 4 May 1993) preventing the resurrection of the CPSU and confirming the ban on political party structures in all state bodies, and at enterprises, institutions and organisations in Russia. Following the court ruling, the Communist Party of the Russian Federation could form itself legally on the territory of Russia, and did. It planned its first Congress on 5th and 6th December 1992 (Pravda, 3 December 1992) within a week of the court decision. By February 1993 it had about 500,000 registered members (BBC SWB 19 February 1993 SU/1617/B). 20

Feofanov notes that Ligachev was unrepentant and admired his consistency (Feofanov, 1993, 635). As an example of this same spirit, Oleg Rumiantsev requested bail for Anatoli Lukianov who was being held in custody on suspicion of involvement with the putsch, (Moscovski Komsomolets, 4 November 1992). 21

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Yeltsin’s official representative Fedotov saw the result as an inevitable compromise. ‘‘The decision . is not a victory of the president, it is the victory of the whole society which learns to solve such an issue in a civilized manner’’ (BBC SWB 4 December 1992 SU/1555/1). Even Yeltsin went on record as applauding the conciliatory approach. In the course of a long interview by Georgyi Dolgov from Russia TV, Otto Latsis from Izvestiia, and Aleksandr Sabov from Literaturnaya Gazeta broadcast on ‘Russia’ TV channel on 15 July (BBC SWB 17 July 1992 SU/1453/B/1), he said: . it was very clearly stated and outlined in [my edicts] that individual communists do not bear responsibility and their persecution based on the sole grounds of them being communists was categorically prohibited. And this is important. Probably, for the first time since 1917, we have not embarked on the course of revenge, so to speak. You understand, it is important that Russia has restrained itself from doing this.22 Conclusion It is the point made by Fedotov that is perhaps most telling. The Constitutional Court was used by the warring factions; this was extremely significant for overall growth of a pravovoe gosudarstvo rule-of-law state, which is a stated aim of the Russian Federation.23 Constitutional oversight was still in its infancy in Russia (Kazimirchuk, 1991; Shulzhenko, 1993; Thorson, 2004). The short lived USSR Constitutional Supervision Committee, whilst creditable, had not been taken seriously during its brief existence between April 1990 and December 1991 (Middleton, 1998). The Russian Constitutional Court had only been functioning for a couple of months when it was presented with the first petition that lead to the monumental Party case. It had barely had time to establish itself a workable modus operandi. Nevertheless the court managed to steer a path towards a resolution that bore one hallmark of success, namely, that both sides could claim some sort of victory. Thus the Constitutional Court judgment in the Communist Party Case was neither watershed nor whitewash; to a large extent it succeeded in being both. Acknowledgements The author is pleased to acknowledge support from the Research Fund, King’s College London, and to record her thanks to Professor Bill Bowring of Birkbeck, University of London for allowing her to raid his extensive library of Russian

22 He was not always so soft-spoken. As part of his imposition of Presidential rule following Edict No. 1400, on October 7 1993 Yeltsin issued Edict no. 1612 ‘‘On the Constitutional Court of the Russian Federation’’, in which he accused the court of twice bringing the country to the brink of civil war, and asserted that it ‘‘. has turned from a body of constitutional justice into a weapon of political struggle representing an exceptional danger to the state’’. 23 As, for example, set out in article 1(1) of the 1993 Constitution of the Russian Federation.

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Law materials and to Mrs K. F. Lawrence for helpful comments on an earlier draft. References Albatz, Ye., 1992. The CPSU was a totalitarian ruler. Moscow News Weekly 28 (July 12the19th), 7. Balashov, A., 1993. Three Constitutional Court judges suspended. Kommersant Daily (1 October), 1. Balzer, H. 2005. Ordinary Russians? Rethinking August 1991. Demokratizatsiya 13 (2). Barry, D., 1992. The USSR: a legitimate dissolution. Review of Central and East European Law 18 (6), 527e533. Barry, D., 1994. Amnesty under the Russian constitution: evolution of the provision and its use in February 1994. Parker School Journal of East European Law 1 (4), 437e461. Barry, D., 2001. Decision-making and dissent in the Russian Federation constitutional court. In: Clark, R., Feldbrugge, F., Pomorski, S. (Eds.), International and National Law in Russia and Eastern Europe. Nijhoff, The Hague, Boston, pp. 1e17. Barry, D., 2002. Russian Politics: The Post-Soviet Phase. Peter Lang, New York. Borovik, T., 16 June 1993. Constitutional Court: crack is not wide, so far. Megapolis-Express 23, 2. Bowring, B., 1997. Russia’s accession to the Council of Europe and human rights: compliance or crosspurposes. European Human Rights Law Review 6, 628e643. Bowring, B., 2000. Russia’s Accession to the Council of Europe and human rights: four years on. European Human Rights Law Review 4, 362e379. Bransten, J., 2001. Russia: A chronology of 1991 failed Soviet coup (Part 1). http://www.rferl.org/features/ 2001/08/15082001123554.asp. Butler, W., 1979. Collected Legislation of the USSR and Constituent Union Republics: Constitutions. Oceana Publications. Dobbs Ferry, New York. Butler, W.W., 1992. Basic legal documents of the Russian Federation. Oceana, New York, London, Rome. CDSP, 1991. Yeltsin decree bans CPSU in Russian Republic. Current Digest of the Soviet Press 43 (45), 4. Ebzeev, B., 1997. Konstitutsiia pravovoe gosudarstvo Konstitutsionnyi Sud (Constitution. Rule of Law State. Constitutional Court). Iuniti, Moscow. Feofanov, Iu, 1993. The establishment of the Constitutional Court in Russia and the Communist Party case. Review of Central and East European Law 19 (6), 623e637. From the Archives: The Suppressed Transcripts, Part I, Demokratizatsiya 1995 3 (4), 411e450, Part II, Demokratizatsiya 1996 4 (1), 109e138, Part III, Demokratizatsiya 1996 4 (2), 271e311, Part IV, Demokratizatsiya 1996 4 (4), 603e622. Gushchin, V., 1992. He said he would not speak, so he didn’t. Moscow News Weekly 41 (October 11the 18th), 3. Henderson, J., 1995. The Russian Constitutional Court. Russia & the Successor States Briefing Service 3 (6), 18e30. Henderson, J., 1998a. Reference to international law in decided cases of the first Russian Constitutional Court. In: Mullerson, R., Andenas, M., Fitzmaurice, M. (Eds.), Constitutional Reforms in Central and Eastern Europe and Russia and International Law. Kluwer, The Hague, London, Boston, pp. 59e77. Henderson, J., 1998b. The first Russian Constitutional Court: hopes and aspirations. In: Mullerson, R., Andenas, M., Fitzmaurice, M. (Eds.), Constitutional Reforms in Central and Eastern Europe and Russia and International Law. Kluwer, The Hague, London, Boston, pp. 105e121. Jordan, P., 2003. Russia’s accession to the Council of Europe and compliance with European human rights norms. Demokratizatsiya 11 (2), 271. Kazimirchuk, V., 1991. On constitutional supervision in the USSR. In: Butler, W. (Ed.), Perestroika and the Rule of Law. Tauris, London, New York, pp. 148e156. Knox, K., 2001. Russia: anniversary of failed coup contains many ironies Radio Liberty Special Report (part 2). Radio Free Europe. www.rferl.org/features/2001/08/15082001124010.asp. Middleton, J., 1998. The Soviet experiment with constitutional control: the predictable failure of the USSR Constitutional Supervision Committee. In: Mu¨llerson, R., Fitzmaurice, M., Andenas, M. (Eds.),

16

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Constitutional Reform and International Law in Central and Eastern Europe. Kluwer Law International, The Hague, London, pp. 133e148. Moscow News Weekly, 1992a. ‘‘Material evidence. The CPSU controlled the law, press, armed forces and state security’’. Headline on p. 1 was ‘‘Communist Party’s Calvary’’. Moscow News Weekly 28 (July 12the19th), 6e7. Moscow News Weekly, 1992b. ‘‘Gorbygate without Gorby’’. Moscow News Weekly 41 (October 11the 18th), 1. Moscow News Weekly, 1992c. ‘‘Which country can’t he leave?’’ Moscow News Weekly 43. Parkhemenko, S., 1992. Nezavisimaya Gazeta, 1 December 1992, translated in Current Digest XLIV (48), 11. Procha´zka, R., 2002. Mission Accomplished: On Founding Constitutional Adjudication in Central Europe. Central European University Press, Budapest. Reid, E., 1995. The Russian Constitutional Court, October 1991eOctober 1993. Coexistence 32, 277e303. Reynolds, S., (Ed.), 1994. Legal Reformation: New Institutions and New Principles. The Jurisprudence of the First Russian Constitutional Court. Statutes & Decisions 30. Robinson, N., 1992. Gorbachev and the place of the Party in Soviet reform, 1985e91. Soviet Studies 44 (3), 423e443. Semler, D., 1993e4. Focus: crisis in Russia. East European Constitutional Review 2/3 (4/1), 107e114. Sharlet, R., 1993a. Chief Justice as judicial politician. East European Constitutional Review 2 (2), 32e37. Sharlet, R., 1993b. Russian Constitutional Crisis: law and politics under Yel’tsin. Post-Soviet Affairs 9 (4), 314e336. Shulzhenko, Iu, 1993. Problems of constitutional control in the former USSR. Coexistence 30 (1), 17e29. Synovitz, R., 2001. East: coup served as unpleasant reminder of past. Radio Free Europe/Radio Liberty Special Report (part 4). www.rferl.org/features/2001/08/16082001113422.asp. Thorson, C., 1991a. Constitutional issues surrounding the coup. Report on the USSR 3 (36), 19e22. Thorson, C., 1991b. Has the Communist Party been legally suspended? Report on the USSR 3 (40), 4e8. Thorson, C., 1991c. The collapse of the constitutional order. Report on the USSR 3 (42), 15e18. Thorson, C., 2004. Why politicians want constitutional courts: the Russian Case. Communist and Post Communist Studies 37, 187e211. Vereshchagin, A., 2005. Dissents in Russian courts. In: Erpyleva, Iu., Gashi-Butler, M., Henderson, J. (Eds.), Forging a Common Legal Destiny. Wildy, Simmons & Hill, London, pp. 314e332. Wishnevsky, J., 1993. The Russian Constitutional Court: the third branch of government? RFE/RL Research Report 2 (7), 1e8. Yeltsin, B., 1990. Against the Grain: an Autobiography Translated by Glenny, M. New York, London, Toronto, Sydney, Tokyo, Singapore. Summit Books.