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Introduction
Cause lawyers commit their legal skills to “further a vision of the good society” and to “reconnect law and morality” (Sarat and Scheingold Reference Sarat and Scheingold1998, 3). While legal professional responsibility can be seen as necessitating alienation from clients (Simon Reference Simon1997), cause lawyers are perceived as being deeply involved with the fate of their defendants. More importantly, it has been argued that cause lawyers are viewed as politically motivated individuals (Hajjar Reference Hajjar1997), who try to use law to alter an inequitable and unjust society (Shdaimah Reference Shdaimah2006) and pursue wide-reaching decisions that may impact people everywhere (Krishnan Reference Krishnan2006). This article utilizes new data and personal interviews with lawyers and activists of the 2013–14 Ukrainian revolution to reexamine one of the major questions of scholarly literature on the topic: which factors contribute to the mobilization of a cause-lawyering movement in nondemocratic environments?
Cause lawyering in nondemocratic regimes is often analyzed in light of the constraints placed on a movement, rather than the factors that empower and mobilize it. First, major works on the topic emphasize the dangers and limitations that come with working for the cause of rights protection in a nondemocratic setting. Thus, Pereira’s comparative study of Brazil, Chile, and Argentina observes that a high level of authoritarianism increases the risk of being purged (for lawyers and judges alike), placing severe limitations on the work of defense lawyers in Chile (Reference Pereira2005, 13). This finding leads the author to conclude that defense lawyers “must wait for the end of the authoritarian regime to demand justice with any hope of success” (13).
A number of cases, however, show that an increase in state repression may fuel, rather than impede, cause lawyering. Thus, as this article will demonstrate, the intensification of state repression in Ukraine in the winter of 2013 fueled a significant upsurge in cause lawyering. This is consistent with other findings on cause lawyering under conditions of growing repression. For example, cause lawyering flourished in Palestine during the 1987–93 uprising against the occupation (Hajjar Reference Hajjar1997, 483), in Turkey during the Gezi protests (Weaver and Quinn Reference Weaver2013; Elveris Reference Elveris2015), and even in Vichy France where repression had increased dramatically (Israel Reference Israël2005). In other words, cause lawyering can prevail not just despite an acceleration of authoritarianism but specifically as a result of it. The question remains: how can increased state repression lead to an upsurge in cause lawyering?
Recent theoretical literature on social movements in democratic regimes can help shed light on this question: studies reveal that collective actors may turn to courts even when they know that opportunity structures are unfavorable. These findings shift the focus away from assumptions that litigation merely seeks individual victories in the courtroom, and to an analysis of the goals pursued by cause lawyers in a given mobilization case. In the case of authoritarian regimes, where litigants are well aware of the constraints enforced by the state, these very constraints, and possibly a change of regime overall, can be the target of legal mobilization.
Second, the upsurge of cause-lawyering movements in some low-income countries leads us to reexamine the mechanism of the rise of social mobilization. Studies show that activity-based participation may compensate for a lack of financial resources (Lofland and Jamison Reference Lofland1984; Snow et al. Reference Snow1986, 467; Rodriguez Reference Rodriguez1988; Holland and Cable Reference Holland2002). Moreover, by building on studies of the role of professional organizations in legal mobilization (McCarthy and Zald Reference McCarthy1977; Tam Reference Tam2010), I consider how their underlying function is fulfilled by social networks in lower-income environments where such organizations are not prevalent. Thus, building on resource mobilization scholarship, we can reassess the conditions that promote the creation of social resources.
The revolutionary context can be critical for the development of cause lawyering, because it overcomes the lack of financial resources extant in poorer countries by uniting anti-authoritarian forces. A recent study of political lawyering during the Tunisian revolution focused on institutional factors, such as the bar’s internal composition, which are seen to have affected the degree of intensity of political lawyering (Gobe and Salaymeh Reference Gobe2015). Yet the authors also acknowledged that “it was the energy of the Tunisian uprising that led representatives of the Tunisian Bar Association (TBA) to align themselves with political lawyering” (28). Gobe and Slaymeh discuss the notion of revolution as being secondary in promoting cause-lawyering success, but in fact, revolution could be vital for its success. In this study of cause lawyering in revolutionary Ukraine, I intend to show how the context of the revolutionary environment promotes the success of cause lawyering. More specifically, the revolutionary mode provides an exceptionally intense level of commitment among participants of the resistance movement, which helps to surmount the lack of financial resources that often impedes cause lawyers in underdeveloped countries.
This article presents a case study of the cause-lawyering movement in Ukraine in the winter of 2013–14, in which I trace legal resistance and the process of creation of various resources drawn upon by lawyers. On the basis of this inductive study, I argue that the cause-lawyering movement (1) increased in response to state repression and aimed to challenge state-imposed terms of legality and (2) was enabled by the democratic revolutionary movement, which provided necessary social resources. First, I examine the existing literature and consider which theoretical framework is more apt in explaining the upsurge in the cause-lawyering movement in Ukraine. Following a brief account of the Ukrainian revolution of 2013–14, I explore the factors that affected and enabled the cause-lawyering movement during the revolution. The Ukrainian case of a modern revolution is instrumental for scholarly examination of cause lawyering in a repressive setting, an understudied social phenomenon.
Litigation Strategy under Repressive States
Scholarly analyses of litigation strategies in democratic regimes often focus on political and legal opportunity structures, which are believed to constrain or empower social mobilization. It is argued that social movements are more likely to develop under favorable political opportunity structure (POS), adapting their strategies accordingly (Kitshelt Reference Kitschelt1986; Kriesi Reference Kriesi1995; Tarrow Reference Tarrow2011). Thus, if the political system is designed to offer open access to the administration in the policy area concerned, interest groups are likely to rely on lobbying; if the political system is “closed,” interest groups are more likely to rely on protest (Koopmans Reference Koopmans1996; Tarrow Reference Tarrow2011). Similarly, a number of legal scholars emphasize that legal opportunity structure (LOS), such as institutional access to courts and various procedural requirements, determine interest groups’ choice to litigate (Conant Reference Conant2002; Cichowski Reference Cichowski2007). Hilson (Reference Hilson2002) widens the scope of analysis, emphasizing that the opportunity needs to be evaluated not only in terms of openness of political and legal structures but also in terms of receptivity of political and judicial elites. He argues that such political and legal opportunities (PO and LO) are often intertwined, affecting litigation and protest strategy (Reference Hilson2002). Thus, “a lack of political opportunity may influence the adoption of litigation as a strategy in place of lobbying, and … the choice of protest as a strategy may be influenced by poor political and legal opportunities” (Reference Hilson2002, 250). These studies focus on the barriers to effective mobilization, which might explain why there is less litigation when more constraints are in place but does not address the rise of legal mobilization in repressive environments.
This inapplicability of PO and LO approaches in the case of the upsurge of cause lawyering under conditions of increased repression may be explained by the following. As pointed out by Vanhala, these studies exclude cases where interest groups turn to litigation despite their expectations of significant constraints and case losses (Reference Vanhala2009, 740). Interest groups might attempt to change and reshape the existing institutional constraints through their participation (Cichowsky and Stone Sweet Reference Cichowski2003; Andersen Reference Andersen2005). Moreover, losing a court case may, in fact, be a litigation strategy in itself: to highlight a policy gap, gain media attention, or possibly mobilize the public (Vanhala Reference Vanhala2009, 740). Thus, litigation should not be seen strictly as a strategy to alter policy, utilized only with favorable institutions and elites. Rather, it can be used by activists as a powerful tool to alter existing structures, elite practices or social discourse.
I derive my argument from sociolegal scholarship that emphasizes activists’ use of litigation to challenge existing constraints rather than being driven by them. Scholars’ analysis of cause lawyers who deploy courtroom encounters beyond an attempt to win a case and alter a policy (McCann Reference McCann1998; Sarat and Scheingold Reference Sarat and Scheingold2006) is particularly helpful in our attempts to evaluate litigation under repressive states. First of all, even such motions as bailing protesters out of jail may show support for disruptive tactics (Hilbink Reference Hilbink2006; Marshall Reference Marshall2006). Importantly, studies show that cause lawyers often do more than mount a conventional defense to secure an acquittal: they can turn a courtroom into a political forum (Kinoy Reference Kinoy1983; McCann Reference McCann1998; Sarat and Scheingold Reference Sarat and Scheingold1998, Reference Sarat and Scheingold2006; Israel Reference Israël2005; Marshall Reference Marshall2006). This theoretical perspective is more applicable to the analysis of cause lawyering in repressive states. As I show in this article, in a revolutionary setting, courtrooms may be used by activists and lawyers as an additional arena of social protest. Legal mobilization strategy in a democratic revolution goes along with the larger revolutionary movement, pursuing the goal of regime change.
In courts, cause lawyers and social activists may challenge the state’s imposition of an alternative vision of legality. The law’s fluidity makes it dependent on social capital, allowing cause lawyers to become “brokers” (Dezalay and Garth Reference Dezalay2012, 2) between state and society. Mobilization on behalf of basic legal freedoms, however, cannot be assumed (Halliday, Kirpik, and Feeley Reference Halliday2007, 25). While some lawyers, who defend political activists, challenge illiberal state ideology (Halliday and Liu Reference Halliday2007), others choose to operate within the framework of state ideology, and such silence can be detrimental to political liberalism (Barzilai Reference Barzilai2007; Halliday et al. Reference Halliday2007, 25). Thus, the most fundamental brokering between state and society in a democratic revolution lies in lawyers’ ability to uncover the state’s attempts to assert illiberal legality. In the legal arena, this means not just aiding social activists but also questioning the rules of the political game dictated by the state.
Revolution and Mobilization of Resources
Resources such as activists’ participation, movement organizations, social networks, and mass mobilization are crucial for social mobilization. Scholars have found that the higher the income (and the higher the gross domestic product [GDP]), the more likely that activists will participate (McCarthy and Zald Reference McCarthy1977; Epp Reference Epp1998); the stronger the professional organizations, the more likely that activists will mobilize (McCarthy and Zald Reference McCarthy1977; Gobe and Salaymeh Reference Gobe2015); the more money social groups have, the more likely they are to mobilize the masses for their cause (McCarthy and Zald Reference McCarthy1977, 1224). While finances make mobilization easier, it should not lead us to conclude that money and existing professional organizations are a necessary condition for mobilization. Rather, let us focus on the underlying resources that make mobilization possible.
First, personal financial resources and national wealth are seen to be vital for mobilization. Zald argues that the amount of discretionary resources affects the amount of resources available to the social movement sector (SMS; McCarthy and Zald Reference McCarthy1977, 1224). The financial aspect of resources is seen as essential and is argued to be higher among higher-income families due to “more disposable income” (1224). Scholars have also found that national prosperity positively affects protest activity (Soule et al. Reference Soule1999), citizen participation in social movement organizations (Wiest, Smith, and Eterovic Reference Wiest2002), and the founding of social movement organizations (McLaughlin and Marwan Reference McLaughlin2000). The causality between the amount of discretionary resources and activation of social mobilization sector is based on assumptions that SMS is a “low priority competitor of resources” (McCarthy and Zald Reference McCarthy1977, 1225). As Snow puts it, resource mobilization scholars assume a “constancy of mobilizing grievances,” that is, social grievances are assumed to be always present, and financial resources are necessary to translate them into social movements (Oberschall Reference Oberschall1973, 133–34, 194–95; Jenkins and Perrow 1977, 250–51, 266; McCarthy and Zald Reference McCarthy1977, 1214–15; Snow et al. Reference Snow1986, 465). These assumptions, however, do not explain cases of social mobilization in environments of financial deprivation.
I base my argument on studies that show that resistance against authorities is dependent on the level of grievances and citizens’ adoption of an injustice frame (Turner Reference Turner1969; Goffman Reference Goffman1974; Piven and Cloward Reference Piven1979, 12; Gamson et al. Reference Gamson1992). Thus, if state actions are seen as severely unjust, SMS will be seen as a high priority, and a lack of finances may be overcome. Much of the movement participation may be based on volunteer work, which offsets a lack of financial resources (Lofland and Jamison Reference Lofland1984; Snow et al. Reference Snow1986, 467). Scholars have found that ideals may lead activists to persist despite financial scarcity (Rodriguez Reference Rodriguez1988, 244; Holland and Cable Reference Holland2002, 305). Indeed, cause lawyers often offer pro bono aid when they empathize with clients who experienced deprivation (Menkel-Meadow Reference Menkel-Meadow1998) or are devoted to the cause of the resistance movement (Elveris Reference Elveris2015). As will be shown in this article, cause lawyers in revolutionary Ukraine mobilized to offer pro bono aid owing to their solidarity with defendants and a belief that the social movement was directed at avoiding a consolidation of authoritarianism in the country.
Second, professional movement organizations are found to be instrumental in social mobilization (McCarthy and Zald Reference McCarthy1977; Gobe and Salaymeh Reference Gobe2015). A closer analysis of the intervening variables behind this causality suggests that the major value of professional movements for social mobilization is in providing a network to coordinate resistance efforts. Moreover, the success of legal mobilization depends on the ways in which cause lawyers cultivate relationships with nonlegal movement organizations, as this affects the strength of collaboration and sharing of skills, information, and knowledge (Levitsky Reference Levitsky2006, 147). Thus, the fundamental resource for social mobilization is an effective cooperation between lawyers and other social groups, rather than the professional organization per se. As the present study of revolutionary Ukraine shows, the formation of civic groups and collaboration between them and cause lawyers was aided by activists’ unity in the antiregime struggle.
Finally, resources have been found to be effective to mobilize the public for the cause in order to place social pressure on the state (Epp Reference Epp1998; Morag-Levine Reference Morag-Levine2006). Cause lawyers’ success depends on their “framing” capacity, that is, their ability to mobilize and appeal to a broader public for the cause (Morag-Levine Reference Morag-Levine2001; Jones Reference Jones2006). In fact, scholars have observed that cause lawyers spend only a fraction of their time litigating, devoting a substantial amount of their efforts to educating the public, rallying supporters, and grassroots organizing (Olson Reference Olson1984; McCann and Silverstein Reference McCann1998; Barclay and Marshall Reference Barclay2005; Fleury-Steiner Reference Fleury-Steiner2006; Hilibink Reference Hilbink2006; Jones Reference Jones2006; Marshall Reference Marshall2006). In the current inductive study I show that a revolutionary context presents a unique opportunity, generating social resources for cause lawyers. More specifically, since mass mobilization is the lifeblood of revolutionary activity, lawyers do not need to invest in mobilizing the masses for the cause. A democratic revolution, where cause lawyers and a large segment of the population are united against an illiberal regime, provides a potentially powerful coalition between cause lawyers and a large mass movement.
As I show in this article, revolution can do in lower GDP countries what money does in higher GDP countries: it pulls together pro bono involvement, social networking, and public mobilization for the cause. The upsurge of multiple civic initiatives, and their ability to collaborate, promotes cohesiveness within the social resistance movement, which eases lawyers’ ability to perform their tasks. Since cause lawyers share the goals of the masses in a democratic revolution, they do not need to invest in efforts to mobilize the public for their cause or to manipulate social response, in order to place pressure on the state. A democratic revolution is a unique social setting, in which cause lawyers, multiple activists, and a large segment of the general population are united for a liberal cause: to halt the repressive methods of an authoritarian state and sustain basic individual liberties. Thus, cause lawyers embedded in a democratic revolutionary movement automatically gain from mass mobilization and the pressure that it places on the state.
Methodology
To show the role of democratic revolution on the development of a cause-lawyering movement, I will utilize process-tracing methodology. The strength of this method lies in tracing the process through which variables interact, a causal mechanism that leads from a source to an outcome. “The process-tracing method is the analysis of evidence on processes, sequences, and conjunctures of events within a case for the purpose of either developing or testing hypotheses of causal mechanisms that might causally explain the case” (Bennett and Checkel Reference Bennett2015, 7). The method is an “especially powerful empirical approach for distinguishing between ideational and material effects” (Jacobs Reference Jacobs2015, 41). The method should not involve a narrative of events (Beach and Pedersen Reference Beach2013, 5), but rather an effective process tracing method reveals conjunctures, indicating the logic of inference and outlining why causal explanations suggested by alternative theories do not stand (Bennett Reference Bennett2015, 291–92). Thus, I will trace the causal mechanism that led from an increase of state repressive methods to the development of a cause-lawyering movement in Ukraine during the winter of 2013–14 and how the larger revolutionary movement enabled cause lawyering by providing social resources. Importantly, while pointing out conjunctures of events, which led from state repression to legal mobilization, I will examine why alternative explanations—unfavorable legal opportunity structure and a lack of financial resources—cannot account for the variation in cause lawyering.
During my four field trips to Ukraine between May 2014 and July 2016 to study the Ukrainian revolution, I conducted in-depth, semistructured personal interviews. In this article I utilize the data from 25 interviews: with eight defense lawyers, seven activists, seven medics, and three defendants. The interviews were held either in Ukrainian or Russian language, for which I performed the translation. All named interviewees gave permission for their identities to be revealed. The interviewees were approached through (1) professional affiliation with the civic initiative “EuroMaidan SOS,” which played a primary role in monitoring court hearings and connecting volunteer lawyers with defendants during the revolution; and (2) “snowball sampling,” a method by which new respondents are recruited through recommendations of existing respondents. While the latter technique has been criticized for its potential to provide bias in sampling, this concern was outweighed by the diversity of the respondents it provided and the high willingness of interviewees to comment extensively on sensitive information as the interviewer was recommended to them by people they trust.
First, the article presents original empirical data to analyze state repression during the winter months of 2013–14, relying on legal cases and documents of the European Court of Human Rights, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and documented accounts from local legal professionals. Revolutionaries’ motivation for participation and demands are drawn from the polling data of 1,037 respondents, conducted by the Kucheriv Democratic Initiatives Foundation and Kyiv International Institute of Sociology.
Second, to trace the causal mechanism behind state repression and an increase in cause lawyering, I analyze lawyers’ motivations for involvement, on the basis of the interview data. I examine why alternative explanations, increased repression, and unfavorable legal opportunity structure (LOS) do not account for the variation in cause lawyering in Ukraine. I provide a detailed account of litigation strategies during the revolution to show that limited LOS did not hinder but rather promoted litigation. Thus, challenging the state’s new terms of legality and turning courts into a vital arena of social resistance was the goal of the cause-lawyering movement.
Finally, I will trace the effect of the revolutionary environment on the cause-lawyering movement, which helped overcome a lack of financial resources. The revolutionary movement (1) involved pro bono around-the-clock modus operandi, (2) relieved lawyers from the burden of investing substantial resources to mobilize the public, and (3) led to the coordination of legal aid through functioning networks organized by newly created civic groups.
State Repression and the Ukrainian Maidan Revolution
Soon after taking office in 2010, President Yanukovych directed a massive transformation of Ukraine’s legal system, which included a substantial institutional makeover, creation of new key positions, and multiple appointments of judges and prosecutors. Institutional transformations included an immediate return to the 1996 Constitution, which replaced the existing parliamentary governmental structure with one that guaranteed extensive presidential powers. Yanukovych also undertook a major attack on Ukraine’s judicial system through undercutting the powers of the Supreme Court and establishing tight control over the judges of lower courts, which led to a number of judicial decisions suppressing political opposition (Popova Reference Popova2013). Peaceful assemblies were now often banned by courts, which based their decisions on Soviet-era law, in violation of Ukraine’s constitution (Vyerentsov v. Ukraine 2013).
While initial protests in the fall/winter of 2013 were held against Yanukovych’s decision not to sign a treaty with the European Union, these protests diminished by the end of November, averaging only 200 people. The mass detention and excessive use of force by riot police against these protesters triggered the revolutionary movement. After the police attacks and detentions on November 30, the number of protesters on the Maidan square in Kyiv (Ukraine’s capital) increased to 800,000, and major resistance social groups, such as EuroMaidan SOS, Maidan’s Self-Defense (Samooborona Maidanu), and AutoMaidan (AvtoMaidan) were formed. According to public polls conducted throughout the protests, “cruel repression of protest participants” was the major motivator of protest participation throughout the winter of 2013–14 (Kucheriv Democratic Initiatives Foundation and Kyiv International Institute of Sociology, January and February 2014). The major demands formulated by Maidan protest participants (expressed by 82%) included the release of detained protesters and an end to repression (2014).
The regime intensified the suppression during the winter months of 2013–14, relying on extralegal methods, including, but not limited to, the use of live ammunition and explosives (Derevyanko v. Ukriane 2014). According to the European Committee for the Prevention of Torture (CPT) and Inhuman or Degrading Treatment or Punishment, which conducted an investigation of law enforcement behavior vis-à-vis protesters during the winter of 2013–14, the poor treatment of protesters was deliberate, became an acceptable means of enforcing operations, and in several instances could be considered as amounting to torture (Council of Europe 2015, 17). Cases of the use of force combined with humiliation and torture were numerous, including “apprehended persons being stripped naked in cold weather and photographed; having their hair cut; toothpaste, shoe cream, or other products being spread on their faces; having their trousers cut and being mocked; being made to kneel and sing to the glory of ‘Berkut’ special police” (2015, 12).
According to cases filed with the European Court of Human Rights, the injuries people received as a result of riot police attacks included broken skulls and other bones, concussions, severely injured internal organs, and wounds (Shmorgunov v. Ukraine and Other Applications 2014). Local and foreign journalists reported being the target of police attacks due to their coverage of extralegal means of state suppression (Dyachuk et al. Reference Dyachuk2014, 50–68). Strict antiprotest laws passed by the state on January 16, 2014, were in violation of constitutional guarantees and the European Convention of Human Rights.
While Ukrainian courts historically maintained corrupt practices (Trochev Reference Trochev2010) and have been a subject to political manipulation (Popova Reference Popova2013), suppression of the opposition political elite via courts intensified during Yanukovych’s presidency (Reference Popova2013). During the revolutionary movement, state reliance on police and courts increased dramatically and targeted nonelite opposition. Detentions and court proceedings against the revolutionaries in the winter of 2013–14 involved systematic violations of due process, acquiring strong characteristics of show trials. Recent studies of legal records show massive falsifications of police signatures (Maselko Reference Maselko2015), failures to inform the detainees about the cause of detention, identically worded police reports purportedly written by different police officers in different cases, and detention decisions being made by unauthorized personnel (Navrotskyi Reference Navrotskyi2015, 10–14). Massive violations of due process in courts included, but were not limited to, judicial decisions made with disregard to evidence, neglecting the presumption of innocence, dismissal of the conditions for bail (15–17), and the state’s failure to inform the Center of Free Legal Help regarding detainees (interview with Tetyana Kozachenko, attorney, May 19, 2014). The defense lawyers I interviewed reported that medical help was often denied, even in cases of severe skull injuries, which prevented defendants from providing proper testimony in court. Recent official investigations conducted in Ukraine indicate state pressure on the courts during the revolutionary period, with some judges recounting directives from the presidential administration to apply the maximum punishment for some activists (Roman Maselko, attorney, press conference, November 16, 2015).
Cause Lawyers’ Motivations for Involvement
Despite increased state repression, the upsurge in cause lawyering during the Ukrainian Maidan revolution was substantial. Over 700 lawyers mobilized to offer pro bono help to protesters. While many lawyers relied on a revived professional organization to connect with clients, new civic initiatives were formed to aid with the task. Prior to the revolution, the Center for Civil Liberties could attract only tens of lawyers per year for volunteer work. During the revolution, however, the Center’s initiative, EuroMaidan SOS, which was created to link the detained with pro bono legal help, attracted approximately 500 pro bono lawyers for the cause (interview with Olexandra Matviichuk, founder of the EuroMaidan SOS, May 22, 2014). A lawyer-led initiative created during the revolution, AutoMaidan’s Legal Protection, attracted over 40 pro bono lawyers to assist over 300 AutoMaidan activists.Footnote 1 In postrevolutionary Ukraine, some lawyers continue to offer pro bono help for Maidan activists and families of those killed to receive state compensation.
All the interviewed lawyers involved in defending activists during the revolution expressed strong solidarity with their defendants, relating astonishment at the sudden repressive turn of the regime and a belief that the movement was directed to avoid the consolidation of authoritarianism in the country. Some, in fact, participated in protest activities and decided that offering pro bono legal help would provide a more substantial contribution to the movement (interview with Roman Maselko, attorney, June 22, 2016). One volunteer attorney explained his participation as part of a “civilizational struggle,” describing his vision of the Ukrainian revolution as a battle for a democratic regime and the rule of law (interview with Dmytro Guzii, attorney, May 20, 2014). Lawyers expressed the belief that their involvement was a necessary action to prevent the consolidation of a repressive apparatus. Thus, one of them related: “I am a criminal lawyer—when I represent a person in a murder case, I understand there is cruelty on his part; he is the problem. But when a government machine beats, tortures, murders people, and law enforcement behaves as if nothing happened, I can’t stay uninvolved, because I understand that tomorrow I, or my family, could end up in a situation like that” (interview with Tetyana Kozachenko, attorney, May 19, 2014).
As discussed above, systematic violations of due process became characteristic during mass detentions and court trials. Lawyers became aware of a transformation of the legal system at the ascent of the revolutionary events. As one of them related, describing state repressive actions: “What happened … was incredible; we cannot even describe it in legal terms; the violations were so substantial and the change so dramatic” (interview with Serhii Laputko, attorney, May 23, 2014). Another volunteer attorney related the following: “On the morning of November 30 … lots of people, who were beaten or just released from detention, came up to the Mikhailivska square to demand that the riot police be held criminally responsible … even though they understood rather well … that this will not work [under this regime]. Nevertheless, they still wanted to rely on legal methods … I immediately … [took action] to work as a volunteer defense lawyer to represent these people” (interview with Olexandr Bashuk, attorney, July 28, 2015).
Moreover, lawyers were aware of the dangers potentially resulting from their involvement: the case of one of their colleagues jailed for alleged “ripping of a judge’s robe” while defending a revolutionary activist became well known (interview with Serhii Laputko, attorney, May 23, 2014). The dramatic increase in police and prosecutorial and judicial violations of due process further implied the likelihood of being prosecuted (interviews with Serhii Laputko, attorney, May 23, 2014, and Roman Maselko, attorney, June 22, 2016). However, the intensification of state repression promoted, rather than prevented, lawyers’ participation. As evident from the lawyers’ accounts above, the outrage at the acceleration of authoritarianism in the country and solidarity with protesters’ willingness to challenge the oppressive state motivated the lawyers to provide pro bono aid to participants of the resistance movement.
Litigation Strategy: Resisting State-Imposed Terms of Legality
The initial move to file criminal cases against the state’s excessive use of force in the November 29, 2013, attacks on protesters resulted in serious backlash. The state aggressively responded by framing the victims of police attacks as the instigators of mass unrest, that is, liable for criminal action (interview with Liubomyra Hoptii, activist, August 5, 2015). This served as a major state message that the regime is transforming, openly adopting repressive methods of control (interview with Olexandr Bashuk, attorney, July 28, 2015). In other words, the legal opportunity structure (LOS) became extremely unfavorable for litigation. Nevertheless, as will be shown in this section, lawyers unleashed a resistance by pursuing and appealing cases, systematizing and exposing police and judicial violations (in courts and in the media), thwarting police attempts to detain activists in hospitals, and so forth. Thus, their litigation strategy was specifically aimed at challenging the newly imposed legal structure. Cause lawyers used courts as an arena of resistance, voicing social refusal to accept the new political order.
During the Ukrainian revolution, cause lawyers actively resisted the imposition of new rules in a political game dictated by the state, becoming agents to broker dialogue between state and society, and participating in the construction of social meanings of justice. The goal of cause lawyering in revolutionary Ukraine lay in the creation of an additional avenue of social resistance against the state’s attempt to consolidate its authoritarian methods of control and asserting the moral boundaries of state-society interaction. To assert the moral boundaries of state-society interaction, the lawyers actively resisted attempts by state agents to reconceptualize the norms of state behavior vis-à-vis citizens’ rights. Moreover, the attorneys actively participated in the construction of social meanings of justice in their discussions with activists, and condemning state violations when addressing national audiences, asserting that state actions constituted violations of citizens’ rights. Thus, cause lawyers in revolutionary Ukraine aimed for fundamental political change through asserting the concepts of legality.
A vital cause lawyering strategy in revolutionary Ukraine was constant mobilization in order to counteract the state’s emergency function. Thus, defense lawyers, as well as volunteers and members of civic groups who mobilized to organize legal help, adopted a “revolutionary mode”: 24 hours a day, withstanding subzero temperatures when waiting outside of courtrooms (interviews with Tetyana Kozachenko, attorney, May 20, 2014, and Maria Tomak, EuroMaidan SOS representative, May 20, 2014). Lawyers conducted systematic documentation of injuries, even in a growing atmosphere of fear where some journalists were unwilling to assist in recording abuses (Zakrevska Reference Sergatskova2014).
Similar to civil rights movements in the United States where the NAACP approached activists to challenge a segregation law in court (Perry Reference Perry2013, 216), cause lawyers in Ukraine persuaded people to challenge state actions in courts (interview with Olexandr Bashuk, attorney, July 28, 2015). On one hand, they informed the activists of the potential serious repercussions as well as the longevity of the pursuit, and yet this came with encouragement. As one lawyer relates:
I always asked them the following questions: “Are you sure you want to take it to the end? Do you understand that [these events] will be followed by a period of repression? Neither you nor I can predict how long these repressions will last, one or two days, or a month … or years and decades as in Belarus and Russia. Are you aware that as soon as you submit your application, you will be filed? You will be on the list. Do you understand that the prospective [to win this legal battle] is zero until the regime changes?” And then I would add: “Do you understand that what you are doing is heroic? It is necessary. It is the only way to neutralize the system.” (Olexandr Bashuk, attorney, July 28, 2015)
The statement above is rather revealing: on one hand there is consciousness of the inability to punish state offenders in the given legal environment, and yet there is determination to break the system through communicating social refusal to accept the new repressive order. Moreover, such communications between lawyers and activists played a role in constructing social meanings. This observation enables us to extend Sarat and Felstiner’s analysis of lawyer-client interaction to a social crisis setting, and reaffirm that while lawyers translate social conflict into legal language and emphasize the consequences of clients’ decisions, they “negotiate reality” (Reference Sarat1988, 759). In other words, by emphasizing the necessity to transmit social protest into legal action, defense lawyers in Ukraine highlighted the unconstitutionality of state actions and contributed to the loss of the state’s legitimacy among the populace. Comparison with Sarat and Felstiner’s work also helps us recognize that while client-oriented lawyers attempt to “limit the impact of their clients’ egocentric views of social life” (765), cause lawyers, to the contrary, extend clients’ personal experiences into matters of social impact.
Another form of challenging the state in the new repressive environment was appealing court decisions of pretrial sentences. While many lawyers bargained charges of inciting mass unrest down to charges of simple hooliganism, reducing a potential decade-long prison sentence to fines or short sentences (interview with Tetyana Kozachenko, attorney, May 19, 2014), scholars of cause lawyering point out that not only does plea bargaining “systematically fragment political resistance through the individualization of cases” (Hajjar Reference Hajjar1997, 495), but it also legitimizes the regime by complying with its terms (Israel Reference Israël2005, 148). Meaningfully, a number of Ukraine’s cause lawyers chose to appeal even against relatively minor sentences, such as house arrests, in order to emphasize that the state, and not protestors, had violated the law (interviews with Roman Maselko, attorney, June 22, 2016, and Ksenija Prokhonova, May 2014). While some of these appeals were rejected, some sentences were successfully reduced (interviews with Roman Maselko, attorney, June 22, 2016, and Ksenija Prokhonova, May 2014).
The major resistance strategy of cause lawyering during the Ukrainian revolution focused on communicating social awareness that the state was a violator of inalienable rights. Thus, they continually exposed judicial violations in court (interviews with Tetyana Kozachenko, attorney, May 19, 2014, and Ksenija Prokhonova, May 2014). One lawyer recalled her victory, which resulted from a combined effort with the public defender and allowed her to represent a client:
The judge would not let me represent the client on the basis that the person already had a government lawyer. The government lawyer stated [to the judge], “Since there is a private defender, I have no right to represent the client in court. And without defenders, you have no right to have a hearing.” The judge responded, “I will file a complaint—you [government lawyer] have no right to leave as I did not dismiss you from the case. So you have to represent him, and you, private defender, will be a private observer.” Then I got out 200 pages of the [detainee’s] detention file [which the court had previously provided to me] and said, “Under which part of the procedural code did you give these case documents to a private observer?” (Tetyana Kozachenko, attorney, May 19, 2014)
These seemingly small victories of lawyers’ ability to establish what counts as acceptable interpretation of law are essential in a state-society discourse determining the legitimacy of state actions.
Some of the most successful exploitations of the state’s legal façade were lawyers’ attempts to prevent detentions in hospitals. Police often raided hospitals after each round of attacks against protesters. Thus, defense lawyers would take turns being “on duty” at hospitals, where injured protesters were treated, ready to face the police (interviews with Ksenija Prokhonova, attorney, May 20, 2014, and Eugenia Zakrevska, May 2014). While on the streets, the riot police could corner groups of people and detain them en masse, hospitals provided a new space of interaction. Policemen had to face only a few detainees at a time, giving an opportunity for lawyers to demand documents necessary for lawful detention, as well as for hospital staff to object to the arrest on the grounds of the seriousness of injuries. Moreover, the hurdles of detention procedures in hospitals gave time for lawyers and activists to contact the press, whose appearance would offer additional pressure on individual policemen (interview with Maria Tomak, EuroMaidan SOS representative, May 20, 2014).
Cause lawyers’ resistance to state imposition of new terms of legality also lay in their construction of a discourse with the detainees. Even when bargaining with the state, lawyers insisted on reassuring their clients that legal violations lay with the state (interview with Anton, activist, May 22, 2015). Lawyers crafted handouts for the protesters emphasizing that (1) a peaceful gathering does not require permission from the state, only a notification; and (2) a state official is allowed to do only what is provided by the law, while a private citizen is allowed to do anything, which is not prohibited (interview with Serhii Laputko, May 23, 2014). Likewise, various lawyers’ press statements asserted that the state was the violator of constitutional order. Thus, an open statement by lawyers and legal activists asserted that the “use of unlawful violence by the Ukrainian authorities” was akin to “legal collapse” (interview with Laputko, 2014). Lawyers expressed no confidence in the judiciary body, asserting that it supported “doubtful, unprincipled, and dangerous government actions rather than protect[ing] human rights and freedoms” (open statement, Bugai et al., December 12, 2013).
Ukraine’s cause lawyers did not limit themselves to lessening the pain of detained protesters but rather actively challenged new terms of legality promoted by the state. By exploiting the legal façade of trials, they exposed judicial violations, appealed sentences and publicized state violations of constitutional order. Lower courts are a vital arena “where law is used to shape community” (Yngvesson Reference Yngvesson1988, 12–13) and where “active struggles over the construction of social meanings” take place (Silbey and Merry Reference Silbey1986). As law posits a perpetual failure to achieve an ideality (Butler 1990, 1716), cause lawyers have the chance to confront tensions in law (Sarat and Scheingold Reference Sarat and Scheingold2006). Cause lawyers in Ukraine actively resisted the newly imposed legal structure and shaped social conceptions of legal rights, greatly contributing to the revolutionary resistance against the consolidation of Yanukovych’s authoritarian regime.
Revolution’s Resources: Effective Collaboration with the Resistance Movement
Solidarity among participants of the larger resistance movement, united in the liberal cause to restrain the growing authoritarianism of the Ukrainian state, facilitated effective collaboration within the movement and contributed to the success of cause lawyering. This collaboration and the pro bono commitment of the participants overcame the lack of financial and institutional backing. Newly organized volunteer civic initiatives coordinated legal aid, provided legal information to protesters (reasserting the right to protest), organized social presence in courts, mobilized the press, and offered secure transportation for revolutionaries who challenged the state through the legal arena. Additionally, activists and journalists’ commitment to mobilize the public substantially reduced the need for cause lawyers to engage in the task. The significant spur in social activity inspired lawyers and enabled them to focus their efforts on the legal arena, contributing significantly to the resistance.
Leadership of the cause-lawyering movement was dispersed, largely built on grassroots initiatives. The need for resources to build networks and coordinate the legal aid was overcome by a surge of volunteer initiatives dedicated to the task. Thus, a large group of volunteers collected information about those who were detained, injured, and missing and connected the detained or their relatives with volunteer attorneys (interviews with Maria Tomak, EuroMaidan SOS representative, May 20, 2014, and Maksym Butkevych, activist, May 2014). Pro bono lawyers and human rights groups were engaged in printing hundreds of thousands of leaflets to offer legal education pertaining to protest conduct (interviews with Serhii Laputko, attorney, May 23, 2014, and Taras Gatalyak, activist, May 23, 2014). Moreover, a number of volunteers brought food and supplies to the newly formed centers, sustaining their around-the-clock mode of operation.
The initiatives drew leaders who were dedicated, but not necessarily familiar with the line of work. Initiatives were often led by volunteers who were previously engaged in human rights NGOs, such as refugee centers or nongovernmental election observers. Thus, the EuroMaidan SOS, an initiative that became one of the leading initiatives coordinating legal aid, was organized by members of the previously lesser known Center for Civil Liberties (CCL). The CCL mostly functioned as a human rights watch in Ukraine and neighboring post-Soviet countries. Their experience as international observers of elections and suppression of postelection protests in Russia and Belarus “suggested the need for a mechanism that would bring together those who needed legal help and those who could offer it” (interview with Olexandra Matviichuk, EuroMaidan SOS representative, May 22, 2014). Similarly, “AutoMaidan’s Legal Protection” was initiated and led by a bank lawyer, who had no previous experience with this type of legal action (interview with Roman Maselko, attorney, June 22, 2016). In other words, the leaders of these initiatives were operating within an entirely new institutional setting, while nevertheless successfully managing the cause-lawyering movement.
Most of the cooperation was coordinated in person, via phone or through social media. Peculiarly, EuroMaidan SOS started with a Facebook post, which was addressed generally to detained protesters and offering to connect them with volunteer lawyers. A second post was addressed to lawyers, encouraging them to offer pro bono aid. Their trust in local attorneys paid off: over 500 lawyers responded within a few days. Similarly, when two volunteer lawyers received over 300 requests for legal aid, following their own Facebook post, they announced a search for pro bono attorneys, which led to the formation of the AutoMaidan’s Legal Protection (interview with Roman Maselko, attorney, June 22, 2016).
As discussed earlier, cause lawyers usually invest a substantial amount of time and effort into mobilizing the public for their cause (Olson Reference Olson1984; McCann and Silverstein Reference McCann1998; Barclay and Marshall Reference Barclay2005; Fleury-Steiner Reference Fleury-Steiner2006; Hilibink Reference Hilbink2006; Jones Reference Jones2006; Marshall Reference Marshall2006). This is needed in order to place social pressure on the state. If the goals of the larger revolutionary movement and cause lawyers overlap, the revolution offers a unique opportunity for mass mobilization to work to cause lawyers’ advantage. Indeed, the Ukrainian revolutionary movement aimed to apply social pressure on the state through raising public awareness and monitoring court hearings.
Revolutionary activism included the continuing presence of protesters at the trials of those who were detained. Monitoring court hearings was promoted by the leaders of social initiatives to attract protesters to attend hearings. The attempts to place pressure on the courts did not cease even after the state began engaging police to prevent the public from being present at hearings. A representative of EuroMaidan SOS described their cooperation with the public: “We constantly informed protesters of the locations of each trial… . It was difficult because they would often be moved to a different location at the last minute—to make it more challenging for the public to keep track… . Young people, who were not let inside the courtroom, stayed outside the building and continued to chant ‘Individual rights above all.’ Local Kyiv residents provided food and hot tea … to the chanters” (interview with Olexandra Matviichuk, founder of the EuroMaidan SOS, May 22, 2014).
Cooperation between activists and opposition parliamentarians proved especially productive due to parliamentarians’ legal immunity. While special police forces prevented the public from entering the courtroom (in violation of Ukraine’s legal code), they nevertheless chose to respect the immunity of parliamentarians. A EuroMaidan SOS activist explains: “Sokol police force stayed on guard to prevent us from entering the courtroom… . Then comes a parliamentarian from the opposition party, he notices me and … grabs my arm and pulls me through the row of the Sokol policemen” (interview with Maria Tomak, EuroMaidan SOS representative, May 20, 2014).
Volunteer civic groups also mobilized the press to prevent detentions. Thus, if the detained were placed under arrest in emergency rooms (due to severe beating by the police) and the police prevented attorneys from seeing the detained, attorneys would notify the EuroMaidan SOS. Representatives of the latter contacted the press, which were often successful in placing pressure by filming police actions, allowing lawyers to see the detainees or even preventing detention (Maria Tomak interview, 2014).
The solidarity between liberal-oriented cause lawyers and the overall revolutionary movement in Ukraine, which aimed to prevent a consolidation of authoritarianism, resulted in very effective collaboration. The cause-lawyering movement flourished, inspired by the democratic revolution. Importantly, Ukraine’s democratic revolution offered substantial pro bono social investment, resulting in successful coordination of legal aid and mobilization of the masses. Not only did this help in overcoming the lack of financial and institutional backing, asserted by resource mobilization theory, but it aided cause lawyers in focusing their energy on battling the state within the legal arena, preventing the imposition of authoritarian terms of legality.
Conclusion
Why do cause-lawyering movements flourish in some countries, which employ authoritarian methods of suppression, but not in others? This study shows that if a society-wide resistance movement appears and is united in a liberal democratic cause, this mobilizes and empowers liberal-oriented cause lawyers. In this context, an increase in state repression may be seen not as an obstacle to litigation but rather as its major motivation: in Ukraine, the cause-lawyering movement mobilized to prevent the usurpation of political power. Revolution is a state-society dialogue, wherein each side attempts to establish the boundaries of state-society interaction, and the battle over state-society boundaries is a battle over legal norms. It is therefore essential to see not only the way legal norms are imposed by the state but the way they are understood and practiced by the movement’s actors (McCann Reference McCann1998, 81). Legal norms are an “intersubjective force that mediates meaning-making activity among and within contending groups, … [they] shape and express the terms of resistance, aspiration, and tactical struggle” (82). Cause lawyers in Ukraine led a revolutionary struggle by reaffirming legal norms, establishing that the boundaries of state-society interaction should be interpreted within the constitutional realm.
Ideological unity between lawyers and protestors facilitates pro bono commitment and effective collaboration of the participants, overcoming the lack of financial and institutional backing. Thus, this study revises resource mobilization theory, demonstrating that social resources are essential in movement mobilization. Importantly, while in nonrevolutionary settings lawyers need substantial funds to function and mobilize masses for their cause, revolutions provide pro bono involvement of activists and mobilized masses. In other words, the ideological commitment of a democratic revolution is a major fueling factor, which provides for effective collaboration between cause lawyers and other revolutionary activists. Freed from the burden of mobilization, lawyers turn their attention to legal battles and actively challenging the state’s imposition of illiberal legalism. The revolutionary setting, in fact, provides mutual reinforcement between cause lawyers and the broader social movement. On one side, if lawyers share the pursuits of the revolutionaries, they are much more likely to volunteer pro bono assistance to aid detainees, jump-starting the cohesive movement. On the other side, mass mobilization for social justice aids lawyers’ perception that their political cause is widely shared and that the sacrifices they might endure are worthwhile.
It could be argued that since Ukraine had enjoyed a period of nonauthoritarianism since 2004, activists may have had access to resources, which are not available in countries with long-standing authoritarianism. These resources could include preexisting national and international networks or the experience of reaching out to international courts. However, as this article showed, while some lawyers relied on existing professional organizations, the core revolutionary work was done by newly created civic initiatives. In fact, since existing professional organizations were interdependent with the state, their work was often undermined by law enforcement agents during the revolution (interview with Olexandr Bashuk, attorney, July 28, 2015). Moreover, while lawyers had developed a practice of appealing cases to the European Court of Human Rights (Wilson Reference Wilson2012) and indeed lodged several applications during the revolution, it did not result in a remedy or alteration of the government’s policy; nor did the Council of Europe’s (2015) conclusion about the state’s use of torture against protesters have any effect on the actions of the Ukrainian state. Thus, if international law did play a role in influencing mass movement, it could be in a symbolic nature, rather than the utilization of these resources per se. Ukraine’s democratic experience had likely consolidated public values of social justice, affecting the social framing of grievance, which, in its turn, brought the revolutionary movement. More research is required to examine the symbolic role of international law in the promotion of democratic values.
The Ukrainian Maidan Revolution was a momentous juncture in Ukraine’s history, as it prevented a consolidation of dictatorial power. It also produced bottom-up civic initiatives, affecting the dynamic of state-society dialogue, and placing social groups at the wheel of many structural transformations. The objective of defense lawyers in revolutionary Ukraine was not merely to ameliorate the potential suffering of defendants but to be a part of the general struggle to prevent the consolidation of authoritarianism. The role of cause lawyers in the Ukrainian revolution was threefold: they provided muscle to the broader social movement by offering legal protection to protesters, they were the mouthpiece of the social message to the state, and they were the ferment of social perception: they reassured the revolutionaries of the legitimacy of their pursuit, affirming that the violation lay with the state.
