Former Defense Intelligence Agency Commander Noh Sang-won [Yonhap News photo]

Noh Sang-won (64), former commander of the Defense Intelligence Agency, has been definitively sentenced to two years in prison for leaking agent information to form an investigative team into alleged election fraud during the December 3rd emergency martial law.

This is the first Supreme Court ruling related to martial law to be issued approximately one year and five months after the emergency martial law incident.

The Supreme Court en banc 2 (Presiding Justice Park Young-jae) on the 12th upheld the lower court's ruling sentencing former Commander Noh to two years in prison and a forfeiture of 24.9 million won for violating the Personal Information Protection Act and illegally receiving funds for brokering under the Act on the Aggravated Punishment of Specific Crimes.

Former Commander Noh was indicted in June last year by the special prosecutor's team for sedition, led by Jo Eun-seok, on charges of receiving military information, including personal details of Defense Intelligence Agency agents, to establish the second investigation unit of the martial law headquarters' joint investigation team, which was to probe allegations of election fraud after the declaration of emergency martial law.

He is also accused of receiving a total of 20 million won in cash and 6 million won worth of department store gift certificates from former DIA Central Newspaper Unit Commander Kim Bong-gyu (Colonel) and Army 2nd Armored Brigade Commander Gu Sam-hoe (Brigadier General) between August and September of the year before last, under the pretext of assisting with their promotions.

The first trial, in December of last year, found all charges to be guilty and sentenced him to two years in prison and a forfeiture of 24.9 million won.

The first trial also acknowledged the illegality of the December 3rd martial law for the first time, stating, "The defendant's actions served as the impetus for former President Yoon Suk-yeol's unconstitutional and illegal declaration of emergency martial law."

The second trial, in February of this year, reached the same conclusion. The second trial also pointed out, "While the declaration of martial law should only be for passive purposes, such as restoring constitutional order, during times of war, emergency, or comparable national crises, the assumption of martial law in the absence of these substantive conditions, and the preparation of troop mobilization and specific missions in accordance with it, constitutes an unconstitutional and illegal act in itself."

The argument by former Commander Noh that the declaration of martial law is a high-level act of governance and not subject to judicial review was also rejected.

The second trial court stated, "All state actions must be carried out legally within the framework of the Constitution and laws," and "The judiciary can review the unconstitutional and illegal exercise of such high-level political decisions."

During the trial, former Commander Noh claimed that he had received the list of DIA agents to prepare for a large-scale North Korean defection situation and that he had merely transmitted personal information under the instructions of Kim Yong-hyun without any intent to commit a crime. However, these claims were not accepted.

The second trial court did not accept the appeals for sentencing adjustment by both the special prosecutor's team and former Commander Noh's defense, taking into consideration that former Commander Noh was being tried for the crime of aiding sedition.

Although former Commander Noh appealed again, the Supreme Court dismissed the appeal, finding no errors in its judgment.

Exterior view of the Supreme Court [Yonhap News photo]

The Supreme Court explained, "There are no errors in the lower court's judgment in violating the principles of logic and experience, exceeding the limits of free evaluation, or misinterpreting the law regarding the abuse of prosecution rights and the establishment of the Personal Information Protection Act violations."

Although former Commander Noh argued that the separate indictment was intentionally pursued to extend his detention while he was already charged with sedition, the Supreme Court upheld the lower court's decision that there was no abuse of prosecution rights as each crime was distinct.

The Supreme Court's ruling in this final appeal came exactly three months after the appellate court's ruling on February 12th. The Special Prosecutor Act for Sedition stipulates that the Supreme Court must issue its ruling within three months of the appellate court's judgment.

Former Commander Noh, who was a civilian at the time of martial law, is known to have been deeply involved in the planning of the emergency martial law as a "behind-the-scenes" figure for former Minister of National Defense Kim Yong-hyun, with whom he had a 36-year relationship.

Former Commander Noh was sentenced to 18 years in prison in the first trial for the crime of aiding sedition, which is considered the "main stream" of the sedition case. The second trial for this case is currently being heard by the Criminal Division 12, the special sedition trial panel of the Seoul High Court.