Chung Eui-yong, former national security adviser, Suh Hoon, former director of the National Intelligence Service, and Kim Yeon-chul, former unification minister, received suspended prison terms from an appeals court over the 2019 forced repatriation of two North Korean fishermen. The court ruled the repatriation was unlawful and found that the officials had made staff involved in the operation carry out duties they were not obligated to perform.
The Seoul High Court's Criminal Division 15-3, presided over by Judge Sung Eon-ju, on the 21st sentenced Chung and Suh each to one year and six months in prison, suspended for three years, on charges including violating the National Intelligence Service Act. Kim received one year in prison, suspended for two years. Noh Young-min, former presidential chief of staff, who was tried alongside them, was acquitted. The lower court had earlier suspended sentencing for all four defendants — withholding 10-month prison terms for Chung and Suh and six-month terms for Noh and Kim.
In the November 2019 case, the government forcibly returned to North Korea two North Korean fishermen suspected of killing 16 fellow crew members, even though the two had expressed a desire to defect to the South. Chung and the others were indicted on charges of abusing their authority in the course of sending the fishermen back.
Like the lower court, the appeals court held that North Korean residents hold the status of South Korean nationals. It found that Chung abused his authority in deciding on the repatriation, a violation of the rule of law and constitutional principles that went beyond grounds for disciplinary action and warranted criminal punishment. The court also found that the officials acted with at least conditional intent (dolus eventualis) in abusing their authority, citing that the decision to repatriate came just two days after the fishermen were seized and was carried out three days later without further verification procedures. Kim, too, was found to have shared the intent to act jointly, as he explicitly or implicitly agreed to the repatriation decision after being briefed on the meeting's outcome and actively took part in the related procedures.
The appeals court ruled that having six officials of the Central Joint Interrogation Center, eight police special forces officers and two Unification Ministry officials carry out the repatriation amounted to making them perform duties they were not obligated to perform, a form of abuse of authority. The lower court had acquitted the defendants on that count. Citing the joint interrogation operating manual and other evidence, the court found that the officials had no duty to carry out a forced repatriation that ran counter to the fishermen's stated wish to defect.
As for Noh, however, the court found insufficient evidence that he had conspired in the abuse of authority or made an essential contribution to the offense, noting that final authority over the repatriation decision rested with Chung.
"As senior public officials, the defendants had a duty to uphold the Constitution and the law and to protect the human rights of citizens, and given the nature of their work, they wield enormous influence over inter-Korean relations and the fundamental rights of citizens," the court said. "Despite views that the repatriation called for caution, they decided on it two days after the seizure and carried it out five days after the seizure."
The court added that the officials "abandoned their duty to protect North Korean residents and inflicted psychological shock on junior civil servants who carried out their work under unlawful orders," and said the side effects were severe, "including instilling in North Korean defectors an indirect fear that they could be forcibly repatriated."
The court also weighed against the defendants their attempts during the trial to evade responsibility by arguing the forced repatriation had been justified or unavoidable. At the same time, it said it took into account that they had no prior criminal records and had failed to reach reasonable judgments while facing an unusual situation.