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Kender acquitted on child pornography charges

Author Kaur Kender (right) following his acquittal in Harju County Court. May 16, 2017.
Author Kaur Kender (right) following his acquittal in Harju County Court. May 16, 2017. Source: (Rene Suurkaev/ERR)

Harju County Court on Tueday found author Kaur Kender not guilty of producing child pornography, demanding nearly €60,000 from the state in court case-related fees.

According to an ERR reporter present in the courtroom, the ruling was met with with applause.

Harju County Court ordered the state to pay €20,028 for Kender's legal fees and €35,666 for expert evaluations. In addition, the state must pay Kender €500 in compensation for non-patrimonial damage and slightly over €5,000 for other expert appraisal fees.

Judge Leo Kunman noted when announcing the verdict that the court based its decision on the expert opinion that Kender's work was not pornographic but literary in nature.

The plaintiff has seven days to notify the county court of its intention to appeal the decision; should it be appealed, the court will make a reasoned decision regarding the case within 15 days.

North District Prosecutor Lea Pähkel will be taking the county court decision to Tallinn Circuit Court.

"The Prosecutor's Office highly values people's freedom of speech and expression, but in this proceeding, the court has only assessed whether this is child pornography or not," said Pähkel. "The intention of the legislator has been for the production of child pornography, like in most other countries, to be a crime in Estonia. And in the case of a crime, the Prosecutor' Office is required to initiate a criminal case and prosecute. It is critical for the sake of legal clarity that a higher court also provide its own assessment [of the case], which is why the Prosecutor's Office will appeal today's decision."

"Untited 12"

The North District Prosecutor's Office accused Kender of having produced child pornography. The subject of the trial was his short story "Untitled 12," which was published in 2014 and subsequently banned.

Kender's short story about a pedophile featured what has been described as "graphic descriptions" of the sexual abuse of children.

The prosecution argued that paragraph 178 of the Penal Code, based on which Kender was charged, does not specify that real-life victims have to be involved, and pointed out that people have been found guilty for the same crime as recently as April 6, 2016.

The defense argued that Kender has been charged arbitrarily and treated unfairly, as the same text the prosecutor considered to be child pornography was distributed and published by another 47 people, among them several well-known members of Estonian society.

Kender points to other literary works to demonstrate that he is being singled out arbitrarily. Both Vladimir Nabokov’s "Lolita" as well as the Marquis de Sade's "120 Days of Sodom" are freely available, and Nabokov has even portrayed as pleasant what Kender himself portrayed as disgusting, the defense argues.

The defense also argues that there is no basis for prosecution, as neither intent nor the matter of the place where the supposed crime was committed has been addressed. There is no proof that Kender intended to create child pornography, his defense argues.

Kender pleaded not guilty, and has said that he doesn't understand in what way his work is supposed to be child pornography.

According to Estonia's Penal Code, the manufacture of child pornography is punishable by a pecuniary punishment or up to three years' imprisonment.

Editor: Aili Vahtla

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