Case No. AP 3388/06, on the appeal of Nermin Ćupina, Constitutional Court of Bosnia and Herzegovina (2009)
In 2002, Nermin Ćupina recruited two underage girls and one woman and forced them to provide sexual services for money. He threatened acts of violence against them and their family members if they failed to comply. Each day, the victims had to earn BAM 400.00 through forced prostitution, which Ćupina kept for himself. The Court of Bosnia and Herzegovina (“BiH”) sentenced Ćupina to 12 years in prison, which it added to Ćupina’s existing four-year prison sentence from the Cantonal Court in Mostar, resulting in a single sentence of 14 years of imprisonment after credit for time already served. In addition, in accordance with Article 110 of the Criminal Code of BiH, the Court of BiH confiscated the material gain Ćupina acquired through his criminal enterprise. The Court, relying on the findings of an expert forensic accountant, established that Ćupina earned at least BAM 100,000.00 that year by forcing the victims into prostitution. The Court also concluded that because neither Ćupina nor his wife had a regular income in 2002, the construction of an apartment valued at BAM 61,481.55 was financed entirely from Ćupina’s criminal enterprise. As such, the Court confiscated the apartment and ordered Ćupina to pay the remainder of the estimated material gain, BAM 38,518.45.
Ćupina appealed, claiming that his rights were violated under Articles II(3)(e) and (3)(k) of the Constitution of Bosnia and Herzegovina, Article 1 of Protocol No. 1, Article 6(1), and Article 7 of the European Convention. The Constitutional Court issued a final binding decision on March 17, 2009 that Ćupina’s rights were not violated. While his perpetration of crimes began prior to the enactment of the new Criminal Code of BiH, his criminal activity and the consequences of such activity continued after the Code became effective. The Constitutional Court also determined that his rights were not violated under the Constitution of Bosnia and Herzegovina or the European Convention and provided a clear explanation for both. The Court stated that it is not possible to determine if any procedural errors were made in the proceedings that would have resulted in a violation of his right to a fair trial. Finally, the Constitutional Court concluded that the decision to confiscate his apartment, which was acquired through the exploitation of women being trafficked, was not a violation to his right to property under the Constitution of Bosnia and Herzegovina and the European Convention, as his property was seized legally and in the public interest.