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The party is not yet over: Yesterday, hearings resumed in Moscow on the legality of Boris Yeltsin's ban against the Communist Party. One of the key witnesses will be Roy Medvedev. Here he explains why the President is in the wrong

In the opening days of the hearings, there were a lot of tendentious speeches, with both sides missing the point. The Constitutional Court called upon the Communist Party lawyers and Boris Yeltsin's representatives to present their case from a juridical standpoint, not a political one, but neither side has so far complied.

The supporters of the former Communist Party of the Soviet Union have focussed on the great services the party rendered to the Soviet people and to the whole of humanity. But it was clear that their speeches about the 'heroic path' of the CPSU, its deeds and achievements could not be considered objective and were not convincing. A speech by Vladimir Sevastianov, the cosmonaut, about the achievements of Soviet space research was listened to attentively, but how can it influence the judges' decisions about the CPSU activities?

For their part, the party's opponents also concentrated at first on mistakes and crimes committed by the CPSU leadership (beginning with Lenin and Stalin and ending with Brezhnev and Gorbachev). They produced secret documents from party files and read aloud parts concerning the occupation of Czechoslovakia, Afghanistan, the military help to Communist parties and groups in Third World countries, the deportation of the peoples of the Caucasus in the Forties, the repressions of the Thirties to the Fifties, the destruction of the churches and the murder of priests.

But, as a historian who has written books about Stalin and Stalinism, Khrushchev and Brezhnev and of the crimes during the civil war times, I did not find anything new in these documents, just as the majority of Western Sovietologists would not. Of course, it is the first time that we actually have seen these documents, but none of us supposed these events could have happened without corresponding decisions from the party leadership. So the promise of lawyers from Yeltsin's side to submit documents about the party to the court that 'will make the world shudder' has not yet been fulfilled.

When the two sides began at last to address juridical positions, the CPSU supporters had the stronger case in my view. They noted, through their lawyer Alexander Kligman, that the court had no legal grounds to probe the constitutionality of the CPSU, or of any other party or political organisation. The party rules of the CPSU had nothing incompatible with the Soviet constitution, though one can find lots of breaches of the Soviet and Russian constitutions - and the party rules themselves - in the activities of the party. But a mistaken, or even a criminal, act by the leadership of a political party does not mean the organisation itself is criminal.

Britain's Conservative Party can be reproached for its activities during the colonial wars at the beginning of the 20th century. Both principal political parties in the United States bear responsibility for the Vietnam War. The French Socialist Party supported the colonial war in Algeria and aggression in Egypt in 1956 (together with Britain). But these events all led to a change of government or of a party leader, not to the banning of the party itself.

The present government of the Russian Federation has violated more than once the economic and social rights of the population that are written in the Soviet constitution. But it does not mean the government is an unconstitutional organ in and of itself. In this light, Mr Kligman suggested that the court should go on discussing President Yeltsin's decrees outlawing the party only, and postpone the case against the party, but his proposal was turned down.

Still to be debated as the hearings reopen is the question of the difference between 'power' and the 'state'. There is no doubt the Communist Party destroyed the old state in a revolution and created a new one in which it was the leading party for 74 years; and that, in a number of incidents, it was intertwined with the state, especially at the top. But one should not confuse the concept of 'power' with the concept of 'state'. The party possessed the power, but it was not a state organisation in the strict sense of the word.

Opponents of the CPSU have tried to prove that the party never changed after 1917. They do not seem to want to acknowledge that a political party is a living organism that changes from one epoch to another. Its organisation, methods and ideology were all different in 1918, 1938, 1958 and 1990-91, when the multi-party system was introduced. And there is no proof of the participation of the top party leaders in the coup attempt of August last year - the event that served as the main accusation against the party and resulted in the Yeltsin decrees of 23 and 25 August banning it.

Two weeks ago, on the eve of the hearings, the party's opponents threatened to turn the trial into a second Nuremburg, while party members spoke about a new Leipzig process (meaning the 1934 process against Georgi Dimitrov in fascist Germany). Party members also recalled the banning of the Communist Party in Indonesia in 1965 and the bloodshed that followed, with three million victims.

But the trial in Moscow has an unusual character. It is of a party that created the Soviet state, all its constitutions, our economy and even the society that has not changed much over the past year, and it should be noted that practically all participants in the trial were members of the CPSU until a short time ago. Yeltsin was one of the top party leaders and a member from 1961-90. His representative in court, Sergei Shakhrai, a junior researcher at Moscow University, was also a CPSU member, from 1987-90. Another presidential representative, Gennady Burbulis, held a chair in Scientific Communism.

Almost all the 12 members of the Constitutional Court were party members, including the chairman, Valery Zorkin. The majority of the staff of the Russian president, government, local authorities, administrative leaders, military men and diplomats in our country are former CPSU members who have not quit the party formally and still keep their party membership cards.

This fact guarantees that there will not be a violent backlash against the CPSU members even if the court is going to declare the party unconstitutional. In all cases the decision taken by the court should be juridically irreproachable, because it will be studied by lawyers throughout the world. So, in the end, the court has to think about its own reputation. It is a creation of the new Russia. The Russian Supreme Soviet decided to create a Constitutional Court on 6 May 1991, and in October the Russian Congress of People's Deputies elected its 12 members, though there are 15 seats. Its early decisions showed it did not intend to be a decorative organ. Presidential decrees annulled were not only small ones, but also more important ones such as merging the ministry of internal affairs and the state security organs. It was in December last year that 37 deputies from the Russian parliament appealed against the Yeltsin decrees banning the party.

The problem for the court is not just to rule 'to be or not to be' for the CPSU, but also whether or not we are going to have an independent Constitutional Court. This circumstance, no doubt, will influence the court's members as they reopen their hearings this week and when they prepare their final decision - in September at the earliest.

Roy Medvedev is one of Russia's leading historians and for many years was an outspoken critic of the Soviet system. In 1989 he was elected to the Congress of People's Deputies and from 1990 was a member of the Communist Party central committee. His books include Let History Judge, On Stalin and Stalinism and Khrushchev: A political biography

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