WHEN Russia's Constitutional Court came into being last year, it was designed to be the chief tool in the construction of a new, law-governed society - an institution above politics.
Political reality in Russia appears to have shouldered aside the court's lofty goal, however.
Currently the court - as an intended independent branch of the Russian government - is involved in a political battle between the executive and legislative branches. Court Chairman Valery Zorkin has been authorized by the supreme Russian legislature - the Congress of People's Deputies - to mediate in a struggle between President Boris Yeltsin and parliament, embodied by Speaker Ruslan Khasbulatov.
At stake is no less than the future course of economic reforms in Russia. Mr. Yeltsin is struggling to continue with radical, free-market policies, while Mr. Khasbulatov is leading the charge to rein in reforms.
Some legal experts question the court's ability to act as an impartial arbiter in settling the dispute between Yeltsin and the congress. They point to the court's confusing ruling Nov. 30 on the legality of Yeltsin's ban of the Communist Party in arguing that the court would be biased when it comes to determining the country's political and economic future.
The Communist Party dispute originated after the abortive August 1991 coup, when Yeltsin issued three decrees banning the party and confiscating its property. Former communist lawmakers challenged the edicts in the new 13-member Constitutional Court.
When the trial began last July, reform-minded supporters of Yeltsin hoped the court wouldn't just uphold the presidential ban but would pass judgment on the legality of the party's 73-year reign of power in the former Soviet Union. Yeltsin's lawyers spent much of the five-month trial presenting documents from secret party archives to support their contention that this was not a political party, but rather an instrument of state dictatorship.
A ruling condemning the party's actions would have helped Russians make a break with the past and adjust to the new conditions in the country, the reformers said. Unlike former Soviet satellites in Eastern Europe (see story at left), as well as the Baltic states, Russia has yet to address the issue of who is responsible for crimes committed during decades of Soviet totalitarianism.
The court, however, was clearly unprepared for such a task. It issued a "compromise" decision, upholding the president's right to outlaw top Communist Party bodies, while overturning the ban on grass-roots party organizations. It also said that some property confiscated from the party had to be returned.
The court sidestepped completely the issue of whether the party had the right to exist. The justices' inability to tackle this issue was disappointing to some prominent Russian legal scholars.
"There were no obstacles to prevent them from rendering a decision on the legality of the Communist Party," says Genrikh Reznik, a human-rights lawyer, who adds that he wasn't surprised by the court's action.
"The Constitutional Court is composed of members of the [former] Soviet establishment," he says. "By condemning the CPSU [Communist Party of the Soviet Union], they would have been condemning themselves."
The justices, of whom all but one are former party members, aren't the only prominent Russian officials having difficulty confronting their Soviet Communist past. Even some staunch Yeltsin supporters - such as presidential aide Gennady Burbulis, who has characterized the party as a criminal organization - find it difficult to criticize their own actions while party members.
"I regret having a lack of intellectual vision" to see that the party was wrong, Mr. Burbulis said at a recent news conference, taking long pauses to search for words. "But I have no regrets over any of my actions."
Only a Nuremburg-type trial could reach a verdict on the Communist Party's conduct, Mr. Reznik says - referring to the trials of Nazi leaders for war crimes after World War II.
But many lawyers, including those who argued Yeltsin's case before the Constitutional Court, say the time isn't right to hold such a trial.
"We didn't want Nuremburg," said Andrei Makarov, a member of the president's legal team, after the verdict was announced. "But we have lots to do in the future. We have to discuss specific crimes."
The difficulty for Yeltsin and his supporters - even if they wanted in effect a Nuremburg trial - is a lack of moral authority to press for such a proceeding, political experts say. In the case of the party ban, "people who left the party in 1991 were prosecuting those who left a couple of months later than they did," says Andrei Kortunov, a political scientist at the USA-Canada Institute in Moscow.
The court's susceptibility to politicization hinders the nation's transition from a totalitarian to a democratic society, warns Mikhail Fedotov, a presidential aide. "The involvement of the Constitutional Court in the political struggle threatens the emerging state ruled by law," Mr. Fedotov says.
Meanwhile, government ministers, who are preoccupied with the future of radical reforms, don't seem to be greatly concerned with the past.
Foreign Trade Minister Pyotr Aven, for example, says the "Communist Party is dead." He adds: "The political situation is extremely complicated and every step must be taken to avoid confrontation."
But the revival of grass-roots Communist Party organizations is likely to complicate the already tangled Russian political situation. The court's decision provides the proper conditions for the Communist Party's rapid rebirth, Gennady Zyuganov, a former Politburo member of the Russian Communist Party, told the Interfax news agency.
The ruling that entitles grass-roots organizations to reclaim confiscated property is especially important because it provides local cells with a legal basis to become the "ideological and organizational successor to the Communist Party," Mr. Zyuganov said. Party leaders are organizing a party conference, which could be held as early as February.