Hello, I am attorney Kim Kwang-sik from Cheongchul Law Firm.

Recently, the Supreme Court overturned the verdicts of acquittal in the case related to the violation of the Military Secret Protection Act, citing the illegality of the evidence collection procedure and ruled that it could not be considered illegal evidence. The major issues included whether the evidence could be recognized as relevant at the time of the first seizure in relation to the defendant's act of keeping military secret documents even after retirement, and whether the legality of the subsequent second seizure was justified. Today, we will examine this latest Supreme Court ruling and discuss the grounds on which the Supreme Court recognized a lawful seizure and search.

[Question]

What is the degree of “relevance” required for a search warrant to be legal?

[Answer]

1.      Background of the case and reasons for the original court's ruling on illegal evidence

The defendant worked with a military secret handling permit from 2014 to 2016 as part of the Defense Readiness Inspection Group and, after retiring in 2016, despite the termination of that permit, kept military secret documents among personal belongings. The investigative agency secured the documents the defendant was storing through the first seizure and the following second seizure, and the original court ruled acquittal based on the illegality of such a search.

Specifically, the facts of the allegations stated in the first search warrant indicated that a third party had leaked the restructuring and relocation plans of a specific division to the defendant, yet the original court concluded that the military secret documents seized during the first seizure were generated and obtained independently of such allegations and could not serve as indirect or circumstantial evidence. Therefore, the original court deemed these documents as insufficient evidence for a guilty verdict regarding violations of the Military Secret Protection Act. Furthermore, even if a new seizure warrant was issued to seize the documents again after the first seizure, it did not remedy the illegality of the original seizure, leading to an acquittal in the end for the defendant's violation of the Military Secret Protection Act.

Regarding this original ruling, the Supreme Court focused on the following issues.

·          Recognition of evidence relevance at the time of the search: Whether the military secret documents stored by the defendant have objective and personal relevance to the criminal allegations stated in the first warrant. The Supreme Court acknowledged the relevance based on specific facts such as markings indicating the documents were military secrets and attempts by the defendant to conceal them.

·          Scope of exclusion of illegally collected evidence and distinction of evidence usage phase: The debate on whether the second evidence obtained subsequently loses its admissibility even if there was illegality at the time of seizure. The court confirmed that the investigative agency conducted the seizure lawfully based on circumstances that could have been recognized at that time.

2.      Detailed analysis of the Supreme Court ruling

(1) Legality of the search and relevance of evidence

The Supreme Court stated that “the term ‘related to the case’ as stipulated in Article 146(1) and Article 149(1) of the Military Court Act refers to something that is related to the allegations recorded in the search warrant and has at least minimal value to prove them. This means recognizing objective and personal relevance with the allegations stated in the search warrant. The objective relevance with the allegations refers to direct relationships with the conduct involved in the crime that is either the content of the allegations recorded in the search warrant itself or is fundamentally related. It can also be recognized if used as indirect, circumstantial evidence or corroborative evidence to prove motives, means, and circumstances of the crime, time, and place. Objective relevance can only be recognized when specific individual relationships are evident by considering the content of the allegations recorded in the search warrant and the investigative target, and cannot be concluded solely because the allegations are similar or identical. Furthermore, personal relevance with the suspect or defendant can also be recognized in cases such as accomplices or indirect accomplices, as well as necessary accomplices regarding individuals stated in the warrant.” The court reaffirmed existing case law while determining that the documents kept by the defendant had a clear association with the allegations of military secret leaking at the time of the first seizure.

·          Marks and Situations within the Documents: The markings indicating the documents were military secrets and the defendant's attempt to damage them during the seizure process demonstrate that these documents are not merely personal belongings but core evidence that can substantiate allegations of crime.

·          Securing Second Evidence after Seizure: The second seizure, in which the defendant’s participation was guaranteed, was legally unproblematic, and the documents secured through it were confirmed to have a close relationship with the original allegations of the crime.

(2) Limitations of the application of the principle of exclusion of illegally collected evidence

In more detail, the Supreme Court concluded that the first seizure was lawful and that the second seizure was also lawful for the reasons below.

·          Distinction between stages of evidence collection and use: Points based on facts that the investigative agency could reasonably recognize at the time and the subsequent second seizure conducted with the cooperation of the defendant led to the judgment that while the creation and acquisition of seized documents could serve as a basis for determining the relevance between the first seizure allegations and the criminal charges, it could not be a basis for disputing objective relevance between the objects seized and the first seizure allegations.

·          Reaffirming Objective and Personal Relevance: The court emphasized that the evidence was proven to be relevant by specific factual circumstances rather than simple similarities to the criminal allegations and concluded that the execution of the second seizure could not be deemed unlawful, thus allowing the documents seized through it to be used as evidence for the case.

3.      Conclusion

This Supreme Court ruling meticulously examined the issues surrounding the admissibility of evidence pertaining to the defendant’s act of keeping military secrets based on documents secured during the search and seizure process.

• By recognizing the objective and personal relevance of the documents, it clarified that the evidence during the search was not simply subject to exclusion of illegally collected evidence.

• Through the distinction of the meaning of “relevance” at the stages of evidence collection and use, it acknowledged that the evidence was secured based on its relationship with crimes that could be recognized by the investigative agency at that time.

• This ruling is evaluated as an important precedent, establishing specific and substantial criteria for the methods and legality of evidence acquisition in future cases related to military secrets or national security.

This ruling is expected to have a decisive impact on future similar cases in legal debates regarding the legality of search and seizure and evidence collection procedures, illustrating a trend of valuing substantive value and relevance over simple formalism in judgments regarding evidence admissibility.

Cheongchul Law Firm has many attorneys who are former military court researchers and military prosecutors with extensive experience and expertise in criminal cases. If you are facing difficulties in a criminal case, please feel free to contact us.