The case brought against him, and especially the prosecutor's appeal of the first-tier court's acquittal based on both the constitutional freedom of art as well as the lack of a damaged party is nothing short of an all-out and totalitarian attack on an essential freedom of Estonian society, and eventually also an attack on the Estonian language itself, Kender writes.
Literature, fiction is lying, technically speaking. A fabrication, and in that sense telling lies as well as doing what a poet does: a poet fables.
Lying, technically. But in essence often the only way to tell the truth about something, the times we live in, people, violence, horrors. In Western culture, this is understood, and freedom of speech, especially the freedom of art in literature, is the most privileged of all. Because of course there's the danger that we might not know something, won't hear a warning, get hurt or die.
Norman Aas*, long-time merited Estonian elite desk jockey, who changes his position as skilfully as a hooker changes condoms, said in one of his interviews that as cruel as it sounds, some matters need to be settled in court. And professor Jüri Saar** warned, also in an interview, that if an artist was too one-sided in their work when describing a suicide bomber, they would be accused of supporting terrorism as well. And [prosecutor] Lea Pähkel said something in court about freedom of speech in literature not being absolute, that it couldn't spread hate, and some such.
And that's exactly the situation with the freedom of art in the Republic of Estonia. As Norman Aas sees it, Estonia doesn't belong to the Western literary space, where the freedom of literature was fought for and won 100 years ago. Where in the last 100 years some works might have been banned, but never an author punished.
Professor Jüri Saar, who knows the inner workings of the state's machine of violence infinitely better than I do, apparently knows for certain that somewhere in their offices, investigators and prosecutors are carefully going through works in Estonian to find signs of support of terrorism in order to open a criminal case. Never mind that anyone can find tens of novels on Amazon that describe the actions of a suicide bomber in painstaking detail.
And Lea Pähkel clearly understands that the Estonian language is the language of the state. She doesn't care what's done in other languages, she can't protect the whole world. But she's made it a matter close to her heart to make sure the mental health of this Estonian writer gets examined, and the posecutor's office says it loud and clear that no, Kender is no De Sade and no Nabokov. And so she tracks the abusers of the Estonian language everywhere in the world with North-Korean zeal and fury, because the language of the state belongs to the state.
So here we are. Prosecutor Pähkel says that not a single person in literature can say whether or not it's porn we're looking at, that it's only for the court to decide. Or, as Norman Aas says: as cruel as it may sound, some matters needed to be settled in court.
So here's what I have to say to this.
As cruel as it sounds, if Estonia's freedom of art is guaranteed by the right to defend yourself in court, wasting years of your life, having your mental health examined, all of it done behind closed doors, while you waste tens of thousands in borrowed money—then, and yeah that sounds cruel, there is no freedom of art in Estonia.
Writers have always been poor. Who from among Estonia's writers could go through with something like this? Probably only Viivi Luik***, and also only if someone gets rid of Jõerüüt**** first.
If the prosecutor's office can say no, you're not De Sade, or Nabokov, or Sorokin, or Ehlvest, or Ellis, if the prosecutor's office says that they are allowed, but you're not, because you'll never compare to them in terms of your art—then there is no freedom of art in Estonia.
My work has been for sale in Estonian as well as English on Amazon, the biggest bookstore in the world, for a year and a half. And nobody has had the slightest problem with it—except for the Estonian prosecutor. For three years, which is more than a tenth of the time that has passed since the restoration of independence, the prosecutor has fought against Estonian literature, which according to the Constitution it is supposed to defend. And if this work is legal in all of the free world but here, then, cruel as it sounds, there is no freedom of art in Estonia.
I should have seen it coming. That Estonia would become the most diseased place in the world for the Estonian language. Only in Estonia do we have a Language Inspectorate that controls and punishes all those who get Estonian wrong somehow, or don't speak it well enough. You don't get anything like it anywhere else in the world. Everywhere else, Estonian is spoken with love, but here it's spoken with the fear of being punished. People want to talk to each other, they want to be understood, it's an intrinsic human need. But if the state debases something human with threats and punishment, then they who make the right of the jungle their own don't need to be surprised if one day all of this comes back to haunt them.
This sounds cruel, but the direct result of this court case is that in these three years, and for the next years spent on this case as well, something has been taken away that our lives may depend on. Literature's freedom to lie needs to be absolute, as it doesn't infringe on any real person's freedoms. Because the competition of cultures is total. The writer needs the freedom to create any fiction they want. It's the only way for society to know truth.
But if the writer now has to take into account that the state might attack them with its machine of violence, if the writer has to be prepared for an attack on their peace of mind, for their material circumstances to become catastrophic, or worst of all if the writer has to be ready to justify their work for years and years out of fear of a prison sentence, grappling for something that sounds common-sensical and logical enough—then this language is already finished, in terms of literature we're already back in a totalitarian state.
The court can defend the writer, and I'm infinitely thankful to the court. Here it can show to those in power: no, Estonia isn't Turkey or Iran yet. But who can defend the freedom of literature? Only some other country, some other language, the language of freedom, love, of people talking to each other? If so, then rest in peace, Estonian language. And yeah, that does sound cruel.
*Norman Aas, former chief prosecutor and secretary-general of the Ministry of Justice
**Jüri Saar, criminologist, commented on Kender's case
***Viivi Luik, Estonian writer and poet
****Jaak Jõerüüt, diplomat and former presidential candidate, Luik's husband
North district prosecutor Lea Pähkel said in the Tallinn Circuit Court on Wednesday that from the point of view of the Penal Code, the literary and artistic value of Kaur Kender's work had no meaning. Pähkel appealed Kender's acquittal by the Harju County Court in May. She is contesting the court's ruling that Kender was to be acquitted of the child pornography charges brought against him.
Read more about the latest developments in the case.
Kaur Kender (*1971) is an Estonian author and entrepreneur. Kender is an advertising executive by trade. He published his first novel in 1998. He was charged with the creation and distribution of child pornography in 2016 following the publication of his short story "Untitled 12."
Editor: Dario Cavegn