The court of appeals agreed with the county court, not guilty. The court's decision says the writer was not guilty of producing child pornography. This case ends here. The prosecutor will not take the case to the supreme court. 

Defeat or victory? Who won, and why?

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What are you allowed to write, really?

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We live in a post truth world, where populists and far right tries to take control using fear and mind games. So why not take action against something that seems too horrible to read?

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Below is an article from the first day of county court in May 2016.

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It's about literature, freedom of expression, penal code, what is acceptable and what is not. Maybe it's about politics. It's about what you can think, and what can you write, and who can tell you what you can, and cannot think and do. The defence of Kaur Kender says it is literature, it is about freedom of expression, it is fiction, there is no real person, and the text is symbolic. Western society has dealt with these things ages ago.

 

It is a writer up against the wall of punishment for his way of writing.

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The prosecution has turned to the penal code of Estonia, and there is no definition that actually says it has to be a depiction of a real person:

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"§ 178.  Manufacture of works involving child pornography or making child pornography available

 (1) 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.

 (11) The same act if committed by a person who has previously committed a criminal offence provided for in this section or §§ 175, 1751, 1781 or 179
is punishable by one to three years’ imprisonment.

 (2) The same act, if committed by a legal person,
is punishable by a pecuniary punishment.
[RT I, 13.12.2013, 5 - entry into force 23.12.2013]"

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TALLINN, ESTONIA

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He is neither a writer that goes easy on the reader, nor on Estonian politics. He makes it clear Estonia in his opinion has gone into a nationalist mode, and nothing good will come out of it. Kaur Kender is perhaps the most successful writer in Estonia, and he is spending most of this week in court, accused of producing child pornography in a fictional novella he published in December 2014.

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In about two weeks he will know what the Estonian justice system thinks of a transgressive hard boiled writer pushing borders, or trying to show that there really are no borders.

 

"I guess this month will be spent dealing with this, although I'd rather be doing all other things I have going on," Kaur Kender says when we meet the night before the trial started.

 

We then go through his thoughts on world politics, where it is heading, communism might be the next trend, Europe is getting old, literally, and the Eastern European countries are lost in Satan's shithole. That's Kaur Kender's way of saying they are lost in xenophobia and nationalism, going back in time in many ways with nationalism, populist political trends, and Neo-Nazis.

 

He really isn't focusing on the indictment, much. At least he tries not to.

 

"It is absurd he says," a sign that Estonia has gone down the road of nationalism, where writers not conforming to status quo are considered dangerous, and need to be controlled.

 

"It is black letters on white paper. They are attacking the alphabet. So why the fuck am I being prosecuted?"

 

The novella that got him in to trouble is called Untitled 12, a story about a mass murderer deteriorating into more horrible crimes, paedophilia, and torture. Not an easy text for the ordinary reader, but the book is not meant to be easy. It is about the dark sides of humanity; it is a satire about Estonian society.

 

"I wrote Untitled 12 while being on vacation in Detroit, USA. I had a feeling of freedom over there. I don't think I would have written the same way if I would have been in Estonia. The climate is different," Kender says.

 

He published the novella as paperback during spring, with a price tag of 6,66 dollars, and describes the meaning of the satire as the following: Scratching, cruel, relentless, ruthless satire of Eastern European fascist porn addicted society, where rich ethnical Estonians can do whatever they please to whomever they want.

 

The prosecutor sees the book differently. The first morning of the trial was open for the public, and prosecutor Lea Pähkel explained the indictment background in her opening statement.

 

"Not even a writer can stand above the law. Freedom of speech also means responsibility," she stated.

 

She pointed out that descriptions of paedophilia like in Untitled 12 can have unwanted effects, similar writings have been found when searching homes of convicted paedophiles, and child pornography is a very serious crime that needs more focus.

 

Kaur Kenders' defence agrees on paedophilia and child pornography being serious crimes, in need of even more severe punishment. But the understanding of the prosecution's point of view ends there. The book is literature, there are no victims as the book is completely fiction, and the prosecution has not been able to state that the writer has had any intent to produce child pornography.

 

"Marquis de Sade wrote his works in prison in late 18th century and beginning of 19th century, so we can have the freedom of writing", says Kaur Kender.

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De Sade is also mandatory reading in Estonian schools.

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He also points out that for example William Burroughs’s book Naked Lunch is full of children being raped and killed, and doing drugs. And Naked Lunch is available in Estonian in the local book stores.

 

"So if my book is child pornography, then William Burroughs' is too. But they don't sue him. First of all, he is dead. Secondly he is American. So they sue me."

 

Kaur Kender also talks about Estonia going back to the ways of Soviet Union times, before the independence in 1991. As a matter of fact, the prosecution's office has dug up an old Soviet time psychiatric evaluation of Kaur Kender, stating him as having an antisocial personality disorder.

 

"That's an evaluation from the time I was trying to keep out of the Soviet Union army, he says, and laughs, but wonders what kind of means the prosecution are using to get him convicted," especially as the prosecutor chose to announce the evaluation during the first open part of the proceedings.

 

It was his late father, a prosecutor, who found a psychologist to write a paper saying that the then 18-year-old Kaur Kender was not fit to join the Soviet army, a common way of doing things at that time. Few wanted to end up in the Afghanistan war.

 

The trial is held behind closed doors, as requested by the prosecution's office.  They stated that closed doors are needed for the sake of public morality. The court agreed.

 

As Kender wrote the controversial novel while being in the US, and published it on a server in UK, the prosecution has acquired statements from both countries saying the novel would be illegal also there. Kaur Kender's defence disagrees again.

 

The Kender case clearly divides Estonia in many ways. One side considers him to be a writer who endangers the status quo, with questionable morality, other sides point out the case is not about child abuse, it's about morality, and some criticizes the prosecution as an attempt to set a precedent for taking control over writers and literature.

 

The local PEN-club has also given Kaur Kender its full support, and states that the prosecution of the writer is political. Kender is well known for his harsh critics of the political establishment,  Estonia’s drug policy as being rather punishing than helping, and he speaks up for the rights of the Russian speaking population in Estonia, still a delicate political question. About 7 per cent of Estonia's population is still without state citizenship, due to Estonian strict rules of who is accepted, especially the language test is considered to be difficult. This has been criticized from both UN and EU.

 

If Kaur Kender is found to be guilty as charged, he could face anything from a fine, up to three years in prison.

 

He is by no means giving up, and will take the case as far as needed.

 

"But if I am given jail time, I will not spend time in prison. If that is the case, you will find me somewhere in South America. I have too much other things that needs to be done."

 

That includes more writing on the way.

 

"They say Untitled 12 is the worst anybody can write. I don't think I'm that good. And besides, it's the second part of a trilogy. I have almost finished the third part, and it will be much worse."

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BOSSE AHLGREN

Freelance journalist, director and producer

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Who is Kaur Kender

- Born 1971, successful Estonian writer

- 11 published books, exceptionally attracts also young readers

- Former ad man, entrepreneur, investment banker, political advisor, now writer and civil activist

- Became a writer to reach creative freedom

- Founded together with others website nihilist.fm, as a reaction against the establishment and status quo: http://nihilist.fm/mankind-loved-vigilant/