The North District Prosecutor’s Office appealed the Harju County Court verdict acquitting Kender. The prosecutor’s office confirmed that they remained of the opinion even following the announcement of the county court’s reasoned decision that Kender’s guilt in creating child porn was proven, which is why in the appeal submitted to the circuit court, the prosecutor appealed for Kender’s conviction.
Tallinn Circuit Court, however, found that the county court’s motives in acquitting Kender were competent. The court partly satisfied the prosecutor’s appeal by reversing Harju County Court’s May 16 order for the compensation of €500 for non-pecuniary damage caused to Kender during the criminal proceedings. The remainder of the county court’s verdict, however, including Kender’s acquittal, was left unchanged.
The circuit court stated that Kender had committed the act of which he was accused in a foreign country, and not in Estonia, as Kender was in the U.S. state of Michigan at the time the work was published on the website Nihilist.fm, the servers of which are located in the U.K. The court noted that it could not be claimed that Kender had realized any part of his work within the area of Estonia’s territorial jurisdiction.
Estonian penal power is extended to include crimes committed in foreign countries only when the act is punishable in the country where it was committed as well. Proving the existence of a norm referring to punishability in terms of crimes committed outside of the Republic of Estonia is the task of the prosecutor, the circuit court noted. The court said that the existence of such a circumstance was not proven.
In order to determine if the production and distribution of Kender’s work is punishable according to the law of the relevant countries, it had to be determined whether the work was of serious literary, artistic, political or scientific value or not. Based on the statements of experts who testified at the county court and the expert semiotic assessment act, the circuit court decided that the work was of serious literary value. This is why the circuit court said that the act Kender was accused of is not punishable by U.S. or British law, which is why the Republic of Estonia has no jurisdiction over the matter.
The circuit court ordered €3,610.80 to be paid to Kender in defense fees from assets allocated for it in the state budget.
The Prosecutor’s Office is planning on taking the case to the Supreme Court of Estonia for legal clarity. The Prosecutor’s Office confirmed that their standpoint throughout the whole process remains to establish final legal clarity in the matter, which is why they are planning to submit an appeal in cassation to the Supreme Court.
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.”
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.