국제법상 ‘비인도적 대우’ 개념의 재구성 ‒유럽인권재판소 판례를 중심으로‒

This study aims to examine the concept and characteristics of “inhuman treatment” and explores its recent interpretative trends, based on the jurisprudence of the European Court of Human Rights which has comparatively clarified the distinctions among torture, inhuman treatment, and degrading treatment. Fundamentally, “inhuman treatment” may be defined as “at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable”. While it presupposes a ‘minimum level of severity’, it refers to conduct that is less intense in degree than torture. The European Court of Human Rights has increasingly emphasized the state’s positive obligations in determining whether conduct amount to the inhuman treatment. First, the Court has recognised that state omission may constitute inhuman treatment. In recent cases, the Court has held that even without specific intent on the part of the state, a failure to take appropriate measures despite awareness of a real risk of such treatment may amount to a violation of Article 3 of the European Convention on Human Rights. This approach is particularly significant because inhuman treatment does not typically require proof of intent unlike torture. Second, the Court places the burden of proof on the state if a certain probability is established. In general, the burden of proof for violations of the Convention lies with the applicant. However, in situations where the act in question is the result of state omission or where an individual is under the total control of the authorities, such as in detention or custody, it may be exceedingly difficult for the individual to prove the violation of the Convention. In this regard, the Court recently shifted the burden of proof to the state in such recent cases. In addition, the Court also decided if authorities fail to present compelling evidence or fail to fulfill their investigative duties, this could amount to a violation of Article 3 of the European Convention on Human Rights. This development - ensuring effective control over state omission and guaranteeing the fulfillment of the state’s positive obligations - suggests that the concept of “inhuman treatment” is being reinterpreted not merely to assess the severity of the act in question, but ultimately to protect human dignity.