국가의 국민 안전보장의무 -유럽인권재판소 판례를 중심으로-

The European Convention on Human Rights does not explicitly stipulate the right to safety of the people, but the European Court of Human Rights has used other substantive provisions to provide the effective protection of such a right in its case-law. Thus the European Court of Human Rights has applied Article 2(Right to life), Article 3(Prohibition of inhuman or degrading treatment), and Article 8(Right to respect for private and family life) in order to provide substantive protection for people's right to safety. It also has used Article 6(Right to a fair trial) and Article 13(Right to an effective remedy) when it comes to the effective remedy after people's safety was compromised. Furthermore the European Court of Human Rights has decided on the basis of Article 14(Prohibition of discrimination) when the case was affiliated with discrimination on its merit. In addition, the European Court of Human Rights has found a violation of people's right to safety not only in terms of substantive obligation of member states but also in terms of procedural obligation. Thus the Court has reiterated that the obligation to protect life under Article 2 of the Convention and the obligation to prohibit inhuman or degrading treatment under Article 3, read in conjunction with the State's general duty under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, requires by implication that there should be some form of effective official investigation and punishment if necessary when individuals have been killed or injured. Furthermore the European Court of Human Rights has applied the strict content-based test in order to examine whether there is a violation of people's right to safety. Thus it examines (1) whether the state knew or should have known the existence of a real and immediate risk of people's safety, (2) whether the state took necessary measures within the scope of its powers to avoid the risk at that time it was aware of the risk, and (3) the measures taken by the state should be practical and effective not theoretical or illusory. The experience of the European Court of Human Rights can be good guidance for the Korean Constitutional Court as the Korean Constitution also dose not have the explicit provision on the right to safety of the people.