17 Jan 2017

Drug Use: Italian Supreme Court Changes Criteria for Aggravating Circumstances

Cassazione penale, sez. III, sentenza 14/11/2016 n° 47978

Drug legislation in Italy makes a distinction between hard and soft drugs. In the country, the sole use of drugs has never configured a criminal offence, but conversely acquisition and possession are currently illegal, even though possession of personal quantities is not subject to criminal penalties. The law establishes maximum limits for possession on a reference dose calculated from the user’s average daily intake of the drug.

Art. article 73.1 bis of the Presidential Decree No. 309/1990 states: “anyone who imports, exports, buys, receives in any capacity, or in any manner illegally holds”.  It identifies then the criminal offence and its consequential punishment for drug possession, the proscribed substances and fixes a threshold for that any exceeding amount be considered as a crime. It exists a presumption of personal use for given quantities, but strict penalties are yet in place for trafficking and only when a certain level of gravity is reached.

Soft drug substances are specifically classified under Italian law.  According to the defined maximum limits for possession for instance, possession of 1.5 grams of cannabis leaf or .5 grams of resin may result in simply a warning. Possession of larger amounts than the established daily dose are punished with a progressive scale of sanctions. In case of huge amount of drugs besides there is an aggravating circumstance, which establishes sentence increased by half to two-thirds, up to 30 years of imprisonment.

In its ruling No. 47978/2016, the Italian Supreme Court, Criminal Section, deals with an issue regarding the minimum quantity of hashish necessary to be configured as an aggravating circumstance for the possession of a substantial amount of drug. The judges state that this quantity shall at least be equal to 4 thousand times the value, which can be held in a day.

According to previous case-law, the initial judicial trend of the Court for issues of drug production, drug trafficking and possession, was that no aggravating circumstance of substantial amount – as set out in the Presidential Decree No. 309/1990, article 80 2nd paragraph – existed where the amount was inferior to 2 thousand times the maximum value, which is 1.000 milligrams, determined and specified for each and every illegal substance by of Table attached as Annex to the Ministerial Decree of April the 11th 2006.

The evaluation of the limits remains however to the discretion of the judge, who is the one to decide where the quantity gets overcome (as establish in a previous ruling Cass. pen., Unified Sections No. 36258).

Recent legislative changes (Ministerial Decree No. 36 of March 2014, then modified in May 2014 by the Law No. 79) have reintroduced the concept of maximum amount lawfully to be held, which was the one mentioned above and therefore the one formerly used by the Supreme Court to qualify crime conducts.

The Court – sentence No. 36258/2012 – in a case regarding the so-called soft drugs initially established the daily total maximum amount of active ingredient expressly indicating the amount of 1.000 mg per day. The expected average percentage was of 5% of active ingredient and a therefore a gross quantity running around 50 kilos.

The Supreme Court judges’ decision however now shifts direction, since the Ministerial Decree fixing the drug limits was annulled by the Third Section – quater of the Regional Administrative Court (TAR) in Lazio in its ruling No. 2487 of the 21st of March 2007. The annulment of the provision had brought the legal daily amount back to the original 500 mg of substance.

It happens then clear why the judges, in order to respect the proportions derived by the annulment of the Decree, have established that the maximum daily amount, which can legally be held and owned, below which no aggravating circumstance can be configurable, must necessarily be equal to 4 thousand times (no longer 2 thousand times indeed) the amount of active ingredient to be legitimately held daily, which currently corresponds to 2 kilos of active ingredient.

Daniela Pacino

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