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Prosecutor decides not to take Kender case to Supreme Court

Kender with his lawyer, Paul Keres.
Kender with his lawyer, Paul Keres. Source: (Siim Lõvi/ERR)

The prosecutor appealed a decision of the Harju county court earlier this year that found writer Kaur Kender not guilty of the creation and distribution of child pornography. The Tallinn circuit court upheld the ruling, and the prosecutor has now announced they are not going to take the matter to the Supreme Court.

The North district prosecutor’s office as well as Kender himself confirmed to daily Eesti Päevaleht that they are not planning to take the matter to the Supreme Court, the paper wrote on Friday.

Last week the Tallinn circuit court decided to uphold the county court’s ruling that had found Kender not guilty of the charges of creating and distributing child pornography. The court found that the placement of Kender’s short story Untitled-12 on servers in the United States and the United Kingdom wasn’t a crime in those countries, which means that it couldn't be treated as a crime in Estonia either.

At the same time, the court specified that for the application of the corresponding paragraphs of the Estonian Penal Code and the Child Protection Act, the creation of child pornography did not need to necessarily involve an actual person. Much of the debate surrounding the case had earlier revolved around the issue that Kender’s short story is a work of fiction, and that there is no real-life child that needed protection under the law.

Professor of criminology at the University of Tartu, Jaan Ginter, commented that it was “logical” that the prosecutor didn’t turn to the Supreme Court. Ginter doesn’t believe that the country’s highest-tier court would have come to a different decision.

“The prosecutor’s office rather had something to lose, because the Supreme Court could have raised the question of the constitutionality of the paragraph in the Penal Code [the prosecution applied],” Ginter said.

This is a reference to another part of the debate and also the first-tier trial, where the point was made repeatedly that in this case, the Penal Code went against the constitutional guarantees of the freedom of expression, and the freedom of art.

Kender himself said that the trials are his greatest contribution to Estonian literature and called this final decision “the return of refugee literature”.

Editor: Dario Cavegn

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