Child pornography case against writer continues after prosecutor's appeal

Kender in the Tallinn Circuit Court, Sep. 13, 2017.
Kender in the Tallinn Circuit Court, Sep. 13, 2017. Source: (Siim Lõvi/ERR)

Charged with the creation and distribution of child pornography in 2016, writer Kaur Kender was acquitted by the Harju County Court in May. After prosecutor Lea Pähkel appealed the first-tier court decision, hearings now continue in the Tallinn Circuit Court.

The Harju County Court acquitted Kender in May quoting the fact that all of the experts who were questioned and that had issued written opinions agreed that Kender's short story “Untitled 12” was not pornographic, as it lacked the features of pornography.

First-tier court: Kender’s work is art

The experts found that Kender’s short story qualified as transgressive literature and did have literary and artistic value, the court noted. As his work depicted fictional characters, it was art, and in its form 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 could only be restricted in order to avert threats to the fundamental rights of actually existing people.

The court also ordered the state to pay €20,028 for Kender’s legal fees, €35,666 for expert evaluations, and €500 in compensation for non-patrimonial damage as well as slightly over €5,000 for other expert appraisal fees.

Prosecutor Lea Pähkel appealed the decision, and on Wednesday the matter was taken up by the Tallinn Circuit Court. In the first hearing, Pähkel said that the artistic value of Kender’s work did not matter in the case at hand, and continued on her original line of child pornography accusations.

Pähkel is also contesting the Harju County Court’s ruling that the state should pay damages to Kender and cover his legal and expert fees.

Prosecutor: Art doesn’t enter into it

The prosecutor argued that the previous-tier court introduced inappropriate conditions to the evaluation of Kender’s short story. These included the argument that for a case against the writer to hold up, the children affected would need to exist in actual fact, that the work would need to be seen as potentially arousing to a pedophile, that it would need to be of artistic value, and that the work would need to have the aim to elicit disgust, and overwhelm the reader.

“The Penal Code doesn’t specify the aim of a piece of pornography, and doesn’t demand an assessment of what it contains, for example in terms of its potential to arouse pedophiles,” Pähkel said, adding that the story still described sexual acts involving children in a vulgar and intrusive way, and that in the light of this fact the Estonian Penal Code didn’t call for an assessment of the text in question to define whether or not it was literature or art.

Pähkel pointed out that child pornography depicted in photographs and videos wasn’t assessed for its artistic value either. From the point of view of establishing guilt, neither the objective of the creation of the material at hand nor the objectives of owning and distributing it mattered.

The requirement in the Harju County Court’s reasoning that the children in the case would need to exist in reality for a case against Kender to hold didn’t matter either, Pähkel said. According to § 178 of the Estonian Penal Code, any depiction of a child in a pornographic situation was illegal.

In addition to the Penal Code, the prosecutor based her line of argument on the United Nations’ Convention on the Rights of the Child as well as the European Union’s provisions for the protection of children from sexual abuse. These clearly defined child pornography as a so-called “world crime” against which all of civilized society needed to take action, Pähkel said.

Following Penal Code to the letter would go against Constitution, court argues

The question is whether the courts should follow the Penal Code to the letter, or in making their judgment also consider the purpose of the corresponding paragraph of the Penal Code. The first-tier court’s reasoning followed the idea that in order for § 178 to be applied purposefully, there would need to be specific and actually existing children in need of protection, and that seeing as Kender’s work was fictitious, this wasn’t the case.

Pähkel’s argument, on the other hand, follows the exact words in § 178, which say that the “Manufacture, acquisition or storing, handing over, displaying or making available to another person in any other manner of pictures, writings or other works or reproductions of works depicting a person of less than eighteen years of age in a pornographic situation, or a person of less than fourteen years of age in a pornographic or erotic situation, is punishable by a pecuniary punishment or up to three years’ imprisonment”.

The first-tier court rejected this as well, as the literal application of the paragraph would go against § 45 of the Constitution:

Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be circumscribed by law to protect public order, public morality, and the rights and freedoms, health, honour and good name of others. This right may also be circumscribed by law in respect of public servants employed by the national government and local authorities, or in order to protect a state secret, trade secret or information received in confidence which has become known to the public servant by reason of his or her office, and to protect the family and private life of others, as well as in the interests of the administration of justice.

There is no censorship.

The Tallinn Circuit Court will make its decision in Kender’s case on Nov. 11 this year.

Editor: Dario Cavegn

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