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Court makes reasoned decision in Kender case, state prosecutor to appeal

Author Kaur Kender.
Author Kaur Kender. Source: (Eeva Esse/ERR)

Harju County Court made a reasoned decision regarding the criminal case of author Kaur Kender, who was acquitted in May on charges of producing child pornography. The State Prosecutor has announced it would appeal the decision to Tallinn Circuit Court.

In its reasoned decision, the court justified the acquittal of Kender, 45, with the fact that all of the experts who were questioned and issued written opinions agreed that Kender's short story "Untitled 12" was not a pornographic work, as it lacked the features of pornography.

Thus the experts found that the short story in question qualified as transgressive literature with literary and artistic value, the court noted.

"The experts who were questioned and who issued written opinions as well as a semiotic appraisal likewise confirm that the description of children's sexual acts in the work 'Untitled 12' involved a number of known artistic techniques," the court found.

Harju County Court referenced in its decision the fact that, as Kender's work depicts fictional characters, it is thus art — literature. "A fictional character does not have fundamental rights and the character cannot be addressed as a person with legal capacity," the court confirmed.

The court also noted that the artistic freedom set out in the Constitution can only be restricted in order to avert threats to the fundamental rights of actually existing and other people.

The court found that as Kender was not proven guilty in the course of the court proceeding, he must be acquitted of charges of producing child pornography.

North District Prosecutor Lea Pähkel has notified Harju County Court of its intention to appeal the case. The State Prosecutor will now have 15 days to submit its appeal.

Kender acquitted

Harju County Court acquitted Kender on May 16, ordering 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.

North District Prosecutor Lea Pähkel told ERR following the judgment that the Prosecutor's Office highly values people's freedom of speech and expression, but in this proceeding, the court had only assessed whether or not this was a case of child pornography.

"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 had 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 pointed to other literary works to demonstrate that he was 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 argued.

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

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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