Minor lawyer peddling drugs. Milan.
Minors and drug dealing.
From organized activity to detention for personal use.
We have the first normative reference in the Italian Law on the subject of narcotic substances with L. 396 / 1923, which subjected the sale and consumption of morphine, cocaine and other psychotropic preparations to restrictions.
In the 1939, the Rocco Code instituted the crime of "illegal trade in narcotic drugs" or that of "facilitating the use of drugs".
Only a few years later, the Royal Decree Law of 15 January 1934 n.151, abrogated and modified the provisional legislation, until, in the post-war period, it reached L. 1041 / 54., Of a decidedly and strictly prohibitionist nature.
However, the main turning point de iure condendo surely goes back to the 1990 in the field of drugs.
The TU 309 / 90, after decades of exegetical uncertainties, had the great merit of bringing together and reworking both the L. 685 / 1975 and the L. 162 / 1990, as well as numerous implementing Decrees promulgated by the Ministry of Health.
Lo "Peddling" it was finally disciplined, in a complete way, by art. 73 of Presidential Decree no.9 of 1990 October 309 (Consolidated text of the laws regarding the discipline of narcotic drugs and psychotropic substances, prevention, treatment and rehabilitation of the related drug addiction states), entitled "illicit production, trafficking and possession of narcotic and psychotropic substances "And provided: "Anyone, without the authorization pursuant to art. 17, cultivates, produces, manufactures, extracts, refines, sells, offers, sells, distributes, trades, transports, procures to others, passes, passes or ships in transit, deliveries for any purpose as per table I provided for by art. 14, is punished with imprisonment from six to twenty years and with the fine from euro 26.000 to 260.000 "
Increasingly widespread delinquent / delinquent phenomena, especially among subjects in the developmental age, the possession of drugs in order to sell has undergone a further change with the Legislative Decree of 1 March 2018 n.21 and by the Decree of the Ministry of health of the following 12 October 2018:
primary consequence: the tightening of the sanctioning response.
In fact, more and more kids become real Puscher.
The motivations? The economic need and / or a social / emotional discomfort are certainly primary.
The fact is that we are also witnessing the increase in the use of these substances.
Last year the European Monitoring Center for Drugs and Drug Addiction (EMCDDA) placed our country in third place among the European Union for the use of cannabis. Ranking that we scale quickly if we limit our analysis to consumers aged between 15 and 24 years only.
However, the operating methods continue to follow an extremely variable phenomenology.
It passes from the consumer, who advantageously buys a certain amount of substance and sells it to his schoolmates in a completely disorganized and sporadic manner or to activities rooted in a pyramidal, hierarchical structure (so-called marketplaces).
While on the one hand the primary objective of the Legislator remains surely to bring a swift and very severe response towards the drug dealer, on the other we try not to forget the principles of: prevention, treatment and not marginalization of the drug addict.
A further problem, not yet fully resolved, lies in the chemical and juridical qualification of the substance of abuse (with a fundamental practical value)
In the 2013 the Legislator, with the DL n.146 of the 2013, converted into law by the L. n.10 / 2014) completes another fundamental step of interpretation on the discipline intervening on the fifth paragraph of the art. 73.
We are actually witnessing the transformation of the extenuating circumstance provided for and regulated in the fifth paragraph in an autonomous offense with a different, and certainly less damaging, framework.
The paragraph 5 of the art. 73 thus provides: "Unless the fact constitutes a more serious offense, anyone commits any of the facts provided for in this article which, due to the means, method or circumstances of the action or to the quality and quantity of the substances, is minor, is punished with imprisonment from six months to four years and a fine from that 1.032 to euro 10.329 "
The Supreme Court of Cassation, with the sentence n.13982 / 2018, specified in the details, what should be the criteria of distinction between the case referred to in paragraph 5 and the primary one, which cannot be carried out through a simple "subtraction" on the done.
In other words, in reference to the methods and circumstances of the action it cannot in any way imply that the continuity of the conduct or the performance of activities, in some way organized, element otherwise such as to prevent limit the configurability of the minor association hypothesis.
The qualitative and quantitative data on narcotic substances, in the presence of behaviors involving the possession or transfer of significant quantities, may not be decisive, if not corroborated by other data, such as:
- The offensiveness
- The sources of supply
- The relationships between subjects
- The complex organization or not
- The presence of a market square
All this implies a careful evaluation by the Judge of merit, who cannot limit himself to a generic evaluation of the fact, but will have to examine all the possible variants of the case (Cass. Pen. Section IV n. 46495 / 2017)
It goes without saying that the primary datum to refer to will be the quantity of drugs held by the offender, depending on whether or not it exceeds the weight data in relation to the specificity of the place of commission of the fact.
It is the so-called "small shop" that is characterized by a lower scope of business of drug dealer, with a reduced circulation of goods and money, as well as with limited earnings (Cass. Pen. Section VI, n.15642 / 15)
Small shop or organized activity: differences
Paradox: in a diabolical reasoning, any peddling activity, even the most rudimentary, from the minor who gives a minimum quantity to the schoolmate to the pucher in the marketplace, it foresees the presence of an organized criminal activity, at least in its primordial phase.
Just think of where the substance in possession comes from and how it entered our country.
The only exception could be offered by the grower who legally buys the seed and then illegally produces and resells the substance.
But there seems to be an extremely limited number of cases.
The fact is that the Legislator himself, above all for the purposes of the sentence to be administered to the offender, makes a clear distinction between the individual drug dealer and the organization at the time of the drug dealing.
According to the jurisprudence of the Court of Cassation, the additional and distinctive element of the crime pursuant to art. 74 dpr 309 of 1990 with respect to the case pursuant to art. 110-81 cpv cp and art. 73 dpr 309 / 90 must be identified in the character of the criminal agreement, which only in the association offense contemplates the commission of a series not previously determined of crimes and in the permanence of the associative link between the participants, which, even outside the individual crimes planned, ensure their lasting and indefinite availability over time to pursue the criminal association program.
The organizational element is therefore distinctive.
It should be noted that the conduct punishable by way of association aimed at the business of dealing cannot be reduced and coincide with a simple agreement of the wills, but must consist of a quid pluris, which is embodied in the actual predisposition of a stably organized structure, which allows, also through this practice, the spread of hegemony.
The necessity therefore arises that the subjects, in the different role, carry out activities directed to the same univocal purpose.
The existence of a stable organization with coordination of people and use of means emerges:
- From the rigidly hierarchical relationship between the associates and the division of tasks
- From the preparation of shifts for the activity of dealing
- From the contacts between the laborers and their leaders
- Weekly pay for the various pushers
Transfer of drugs to a minor:
Ex art. 1 lett. A) art.80 TU 309 / 1990 "The penalties provided for the crimes referred to in the art. 73 TU 309 / 90 have increased from a third to a half in cases where drugs or psychotropic substances are delivered or in any case destined for a minor person"
Cass. Sec. pen. III 16 December 2015 n.49571 reiterated that the aggravating circumstance mentioned above was also extended to the possible use of a pusher under eighteen, who, although admitted to the role of mere executor of the delivery, could split the envelope and use part of the dose for himself.
Attention to the minor that we also find in art. 82 co 2 TU pursuant to which "the penalty (referred to in co 1) is increased if the offense is committed against a person of a minor age or inside or in adjacency of schools of all levels, youth communities or barracks ".
The eighteen-year-old prefers the consumption of synthetic drugs such as ectasy and lysergic acid, but cannabis remains the most widespread substance.
To date 450 thousand minors usually smoke hemp.
Question: Is it a crime to sell cannabis derivatives such as inflorescences unless they are devoid of doping efficacy?
The Joint Sections of the Court of Cassation of 10 July 2019, n. 30475
The question submitted to the Ermellini's attention was the following: “If the conduct other than the cultivation of hemp of the varieties referred to in the catalog indicated in art. 1, paragraph 2, of law 2 December 2016, n. 241 and, in particular, the marketing of hemp sativa L, fall within or not, and if so, within what limits, if any, within the scope of applicability of the aforementioned law and are, therefore, criminally irrelevant under this legislation ".
The jurisprudential guidelines
On the subject two opposing jurisprudential orientations are confronted, a first one tending to exclude that the law of 2016 allows the marketing of derivatives from the cultivation of cannabis sativa L (Criminal Court, Section III, 10 January 2019, No. 17387; Court of Cassation, Section IV, 19 September 2018, No. 57703; Cass. pen., Section VI, 27 November 2018, n. 56737) and another which, from the legality of the cultivation of cannabis sativa L, according to the law of 2016, leads to the lawfulness also of the marketing of derivatives such as leaves and inflorescences, provided they contain a percentage of active principle lower than 0,6% (Cass. pen., Section VI, 29 November 2018, n. 4920).
There is, then, a third, intermediate orientation, which supports the lawfulness of the products derived from the cultivation of hemp allowed by the novel of 2016, provided that they present a percentage of THC not higher than 0,2% (Cass. Pen., Section III , 7 December 2018, No. 10809).
The decision of the joint Sections
According to the United Sections, the cultivation of cannabis and the marketing of the products obtained from it, according to the textual listing contained in table II, in the absence of any threshold value previously identified by the criminal legislator with respect to the percentage of THC, fall within the scope ofart. 73, paragraphs 1 and 4 TU Stup. In fact, this case incriminates, in addition to cultivation, production, manufacture, extraction, refining, sale, offer or sale, transfer or reception for any reason, distribution, trade , the purchase, the export, the import, the transport, the fact of procuring to others, the sending, the passage or the shipment in transit and the delivery for any purpose or in any case illicit detention outside the hypothesis of personal use, of the drugs referred to in table II, of theart. 14 TU Stup.
Il range of tolerance in which there is no criminal relevance, i.e. the percentage between 0,2 and 0,6%, is valid only to discriminate the farmer when during ripening the crop used lawfully ends up exceeding the threshold values indicated by the legislation .
The legislation considers only the cultivation of hemp of the varieties admitted and registered in the common catalog of varieties of agricultural plant species lawful, in accordance with the provisions of art. 17 of Directive 2002/53 / EC of 13 June 2002 of the European Council, allowing its use for food, cosmetics, green building purposes and for the remediation of polluted sites.
Where is the threshold between what is lawful (possession intended for personal use) and illicit (possession for drug dealing purposes)?
With the sentence n.27346 / 13 The Supreme Court - Quarta takes the opportunity to reaffirm the validity of those hermeneutical criteria, which allow to bring back a situation of drug possession, in the wake of non-punishment, when it is configured as for use exclusively personal.
The salient points of law of the ruling are substantiated in three observations.
La L. 49 / 2006:
- despite having adopted a completely "unhappy" semantic formulation - "it does not contain elements of substantial novelty with respect to the previous legislation, which penalized the possession of narcotic substances, which was not aimed at personal use ";
- has not introduced at all, towards the person who is caught in the possession of quantities that exceed the table limits
- a) "Nor a presumption, whether purely relative, of the destination of the drug held for non-personal use",
- b) "Nor an inversion of the burden of proof, constitutionally inadmissible pursuant to art. 25 of the Constitution paragraph 2 and art. 27 of the Constitution, Paragraph 2 ";
- it has also not innovated at all "The parameters indicated to appreciate the destination not exclusively for personal use”Of the substance held, already adopted in the past.
The Court of legitimacy, after having set out the aforementioned premises, emphasizes, below, two other legal arguments, which appear to be in relation to the present case.
- A) First, the parameters given by the quantity, method of presentation or other circumstances of the action, "Should not be considered individually or in isolation". (The presence of even one of them is not sufficient to confer criminal conduct automatically on the conduct).
- B) To this end, referring to the typical example of exceeding the table limit, the Supreme Court points out that this situation it is not, by itself alone, symptomatic of not exclusively personal use of drugs.
To be able to support the unlawfulness of detention, therefore, the situation of excess of the aforementioned table limit must be supported and corroborated by the actual existence of one of the other valuation paradigmsart. 73/ 1 bis DPR 309/90 It expected.
In fact, in order to arrive at an unfavorable prognosis for the accused, it appears necessary that the method of presentation and other circumstances of the action they tend to convincingly exclude a destination for strictly personal consumption.
Having said this, it appears undisputed that the principle that always places the burden of proving the offense on the Public Prosecutor's office remains unchanged.
Case study:
The present case concerns a person found in possession of gr. 7,5 of heroin and that had been convicted - after granting the mitigating circumstance with special effect provided for byart. 73 paragraph 5 ° dpr 309 / 90.
based on the decision by the Judges there were in fact two reasons:
The first consisted in excluding that the quantity found could integrate a stock for their own use, since, according to the judges of the merits, the accused - due to his good economic abilities - would not have had any need to build substantial stocks.
The second, on the other hand, concerned the scarce convenience of buying, given the poor quality of the drug.
The two alleged circumstances, together with the modalities of the conduct of the accused, would have deposed - in the opinion of the Territorial Court - for the destination, even if only partial, of the drug to third parties.
The intervention of the Supreme Court defined the deductions of the appellate judges absolutely illogical when they argue:
- that the existence of a good economic capacity, a concrete condition incompatible with the will to make a purchase, determined by a favorable price;
- that it is not convenient to buy drugs that are of poor quality.
In the first case, in fact, the choice of the individual to dispose of his own money, when this option is carried out freely and without any kind of generalizations, does not seem reasonably to be questioned.
In the second case, however, any poor quality of the doping compendium constitutes information that the buyer acquires in a hypothetical and only ex post.
Furthermore, the possible condition of relapse is overcome by the demonstration of the subject's state of drug addiction.
The only drawback of the sentence in question lies in the fact that it is used as a parameter concerning the active substance contained in the 7,5 grams of drug in question, the criterion of average daily dose, yes to derive 48 average daily dose.
In fact, it is observed that, in dealing with hypotheses of undeniable custodial behavior, the correct hermeneutical canon should have been that of maximum quantity that can be held.
Indeed, it is undisputed that, while the average daily dose (equal to 25 mg. of active ingredient) appears to be an original tool, of an interpretative nature, functional to quantify the diffusion capacity of a sample of drugs, in relation to which there is the certainty of a destination for sale to third parties, the maximum quantity that can be held constitutes a complex construction parameter (given by the average daily dose multiplied by twenty) which should only be used in the presence of inert pipelines, such as possession or cultivation.
The aforementioned orientation is also supported by the consideration that the motivation of the sentence in question, when it states that exceeding the table limit, by itself alone, it determines the penal relevance of the detention, undoubtedly uses the parameter of the maximum quantity that can be held, which, not surprisingly, coincides with 500 mg. of active ingredient.
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