The Reform of 2006

The decree of 30th December, 2005, No. 272, converted, with modifications, to Law, 21st February, 2006, No. 49, has changed the criminal and administrative sanctioning regulations of narcotic substances (see articles 73 and 75, respectively, of the DPR (President of the Republic Decree) 9th October, 1990, No. 309, compared now, on the one hand, with the new Article 73, and on the other, with the new articles 75 and 75 bis).
In reality, the modification although much reduced compared to the original governmental project, concerns also other sectors of the regulations.
First and foremost, all the recovery sectors – with a totally innovative choice – have set up a substantial equalization between the private and public structures, attributing to the former even the competence of certifying the state of drug addiction (with important legal effects, e.g. for personal precautionary measures, for the suspension of the enforcement of the sentence, and the probationary custody: see respectively, Articles 89, 90 onward. And 94 of the DPR No. 309/90).
It suffices to think of the modifications introduced in the phase of the enforcement of the custodial sentence concerning the drug addicted prisoner, where the institutions have considerably broader operative powers in the suspension of this sentence (Articles 90-93 of the DPR No. 309/90), and of the probationary custody (Art. 94 of the DPR No. 309/90). This, in the hope of accentuating the favouring and/or rewarding the recovery and rehabilitation of the individual.
Reference is also made to the innovative provision, in a special para. 5 bis. of the “new” Article 73 of the DPR No. 309/90, on the strength of which, if the Judge is satisfied that the “fact of minor entity” exists, limited to the crimes referred to in the same Art.73, he can apply – upon the request of the defendant, with the conviction or “plea bargaining” – instead of the custodial and pecuniary sentence – the public utility work provided for in Art. 54 of the Legislative Decree, 28th August, 2000, No. 274. In this case, it is also an arrangement which favours the possibility of the recovery of the drug addicted person.
Lastly, this time with the final scope of increasing instruments which can be used to counteract illicit traffic; the incisive modifications concern also the regulations of the investigative powers given to the Judicial Police Force. In particular, with the provision for a more adequate and complete set of regulations for the “simulated purchase” of narcotic substances (see Art. 97 of DPR, No, 309/90).
Here, we shall limit ourselves to the re-construction of the modifications which specifically concern the equalization of the narcotic substances (all the prohibited substances are listed in Table I and have equal sanctioning treatment), and the provision for “regularization” of the evidence parameters (Art. 73, para 1.bis, letter a), of the DPR No. 3099/90) utilizable to demonstrate the “illicit” destination of the narcotic substances in the presence of conduct involving (purchase, receiving, importation, exportation, possession), ex se not self-evidently demonstrative of such destination.


The modification of the sanctioning regulations

As mentioned, the Reform introduced in 2006, affected principally and incisively, the criminal and administrative sanctioning regulations of narcotic substances (see respectively Articles 73 and 75 of the DPR No. 309/90, compared now, on the one hand, with the new Article 73,and on the other, with the new Articles 75 and 75 bis).
To fully understand the importance and finality of the Reform, it would be necessary to have an adequate familiarity with the regulations originally provided in the DPR No. 309/90 (in the text already substantially modified following the results of the Referendum of 18th & 19th April, 1993). For obvious reasons of brevity, suffices only a concise recollection of the 1990 regulations, as originally constructed and subsequently reformulated, following the Referendum consultation of 1993.


The 1990 regulations

The Sanctioning System detailed in the DPR No. 309/90, as one will remember, found its foundation in the concept of the “average daily dose” (individuated, for every substance, with the Ministerial Decree No. 186/90 and in the modulation of the sanctioning response through the provision for administrative sanctions - (Articles 75 & 76) and for criminal sanctions - (Article 73).
The conduct characterized by the “destination of the narcotic substances to third parties” had criminal importance, irrespective of the quantity of the substance (even if inferior to the average daily dose). Likewise, the conduct characterized by the (importation, purchase, possession etc.) had criminal importance even though not intended ex se for third parties, if the quantity was superior to the average daily dose.
Therefore, it remained that only the conduct of importation, purchase and possession for personal use, and in a quantity not superior to the average daily dose, had administrative importance. The administrative sanctioning response was diversified: in the first place, there were the sanctions applicable by the Prefect (Art. 75); in the second place, sanctions were provided for – always of an administrative nature, but more incisive – by the Judicial Authorities, imposed on habitual offenders and on those who had transgressed the prefectorial measures. In short, a sanctioning system ensued that presented the undoubted advantageous of the certainty of application, by the very fact of being based on a rigorously objective parameter and easily ascertainable, such as that of the average daily dose.
The Referendum of 18th & 19th April, 1993, radically changed the applicative aspect, having abrogated that which concerned both the legal concept of the ‘average daily dose’, and the administrative sanctions by the Judicial Authorities (Art. 76).
Decided uncertainty arose in the application of the sanctioning regulations in cases which were not objectively characterized by the ‘destination of the substance to third parties’.
Furthermore, an inadequate administrative sanctioning system ensued, due to the unsuitability of only prefectorial sanctions to counter the habitual offender and more serious behaviour. A system which was not able to function as indirect psychological pressure on the transgressor to induce him/her – in order to avoid the application of the sanctions – to submit to a therapeutic programme of rehabilitation and recovery.

Briefly, the normative system of 1990, after the abrogative effects determined by the Referendum, has until now, functioned through the interpretation of the law and on the basis of the following principles:
a) that of the criminally sanctioned prohibition of any activity concerning narcotic substances not directed to personal use, that is where the destination of the substances to third parties be positively demonstrated; and this, irrespective of the quantity of the narcotic substance (Art. 73 of the DPR No. 309/90);
b) that of the administratively sanctioned prohibition of activities of importation, of purchase and therefore, of possession of narcotic or psychotropic substances intended exclusively for personal use. For these activities, irrespective of the quantity of narcotic substances, and in absence of concrete proof, even only partial, of the destination of the substance to third parties, found application as set out in Art. 75 of the DPR, No. 309/90.
c) the provision of the jurisdiction, by the Prefect only, in the
application of the administrative sanctions (Art. 75 of the DPR, No. 309/90: the originally provided further intervention on the part of the Judicial Authorities, directed to strike the habitual transgressor more incisively, having been eliminated (Art. 76 of the same DPR, abrogated entirely, due to the effect of the Referendum).

The system as constructed above determined that, for the crime configuration provided for and punished by Art. 73 of the DPR, No. 309/90, the concrete demonstration of the intended destination of the narcotic substance to third parties was needed, establishing such destination as one of the “constitutive elements” of the crime de quo.
In such a perspective, according to the prevalent and preferable opinion, the relative probative obligation had to be considered the responsibility of the accuser (in the first place, the police operator, and then, the Public Prosecutor) – not being interested in having to justify the intention for personal use (1)).
And, in the same perspective, the accused simply had, if anything, the obligation of furnishing contrary elements with respect to the adversarial statement; hence, elements suited to demonstrate personal use and, thereby, excluding the trafficking finality of the illicit drug.

With an end to satisfying the mentioned probative obligation with regard to ‘destination of the narcotic substance to third parties’, according to the absolute constant law, it was necessary to examine the particular characteristics of the concrete case, since from these they could and had to obtain elements of evidence useful to demonstrate the trafficking finality.
Obviously, a problem of concrete acquisition of the evidence of ‘destination to third parties’ could exist only for the situations not characterized by a verification of flagrant trafficking, inasmuch as this resolved ab imis any probative problem and allowed for the obvious application of the criminal sanctions – reference Art. 73 of the DPR, No. 309/90
In other words, the flagrancy of the trafficking constituted factual circumstance ex se which fully satisfied the probative obligation and enabled the foundation of a positive judgement on the existence of criminal responsibility. On the contrary, where the flagrant act of trafficking was lacking, the probative obligation of the accuser – in order to demonstrate that the possessed substance was not for personal use, but for drug trafficking purposes - was to seek supportive probative or circumstantial elements in the concrete case.
In other terms, in the case where the flagrant act is wanting, the prognostic evaluation of the destination of the narcotic substances to trafficking had to be made by the judge, taking into account all subjective and objective circumstances of the incriminated fact.
In this regard, the most important probative element that could be used was “quantitative”: the presence of exorbitant quantities of narcotic substances demonstrated comprehensively, or contributed to demonstrate, that it was certainly not intended for the personal use of the holder only and that, at least, in part, was intended also for third parties: so that it was possible to appropriately contest Art. 73.
In the presence of a relatively small quantity of narcotic substance, the reference point of ‘quantity’ could not be, by itself, sufficient to resolve the problem of

proof of the destination of the drug to third parties: in such hypothesis “other potential elements of evidence” had to be sought, drawn from the objective and subjective specific modalities of the case. In the first place, parameters of reference of the “subjective” kind were utilized. Particularly significant were those based on the “subjective quality of the holder” ( whether drug addicted or not) and on the “judgement of compatibility between the economic conditions of the individual and the possession of the drug”. Regarding the first, the circumstance in which the drug was found on a non-addicted subject, constituted an important probative argument, representing a distinct indication that the drug was intended for trafficking. Regarding the second, the absence of a demonstrated working activity which provided a secure source of income could indicate that the drug, that is, the selling of same, constituted the main, if not exclusive, source of the holder’s means of livelihood.

Other evidential elements of an “objective nature”, in support of the narcotics being ‘intended for third parties’ can be drawn, for example: from the “way of keeping” and from the “portioning in doses” of the drug; from the “space-time modality of the seizure” of same; from the “finding of other narcotic substances” and from the “finding of notable quantities of substance for cutting the drug” etc.

The system, as reconstructed above, by reason of its “demolishing” effect induced by the Referendum, presented, from the beginning, some obvious insufficiencies.
The elimination of an objective and predetermined parameter (the average daily dose) and the construction of a system in which the proof of the ‘intended for third parties’, in the absence of flagrancy, was drawn from circumstantial evidence – fruit of mere case law interpretation – has caused unquestionable operative difficulties for the forces of law and order, which had to choose whether to cultivate the administrative path (bringing the case to the attention of the Prefect) or that of the criminal path (reporting the case to the Judicial Authority; a choice between the report at large, and the arrest of the culprit caught in the act, etc.,). The same reasons have favoured, also in the principle of continuation, the risk of an unjustified margin of excessive discretionary action at the head of the Judiciary Authority, which is called to decide on the matter: thereby giving rise to frequent polemics over acquittal sentences handed down on the basis of claiming personal use, even when the quantity of drug possessed by the accused was sizeable.
Furthermore, the elimination of the sanctions contained in Art. 76 of the PDR No. 309/90, has resulted in the administrative sanctioning system being limited and insufficient, above all from the preventive point of view. In fact, it fails in representing a sanctioning instrument that is really suitable in determining the offender who, in order to avoid the application of the sanctions, would follow a therapeutic programme of rehabilitation and recovery.
It is to fill this gap that the regulatory intervention of 2006 came about, which has operated on both the side of the criminal offender and on that of the administrative sanctioning solution.


The new sanctioning system

The system has again been constructed putting beside the criminal sanctions (Art. 73), those of the administrative (Art. 75 and 75 bis).
Compared to the first, as we shall see, there has been the intention to confer on the law and order forces, in the first place, and then on the Judiciary Authority, a more objective and secure space of intervention, different from that amply discretionary one that has characterized the application of the DRP, No. 309/90, after the Referendum modifications.
In this perspective, to introduce the “circumstantial evidence” criteria into the regulations, which up till now, and only through the case law interpretation, has been used to establish probative demonstration of the destination of the substance different from personal use (see Art. 73, para 1 bis, letter (a)).
Instead, the administrative system has been constructed with a double intention: on the one side, to reinforce the sanctioning instrument, in the hope of creating a more effective mechanism, also in relation to the recovery of addicted individuals (sub specie, of the indirect psychological pressure on the offender to persuade him/her to accept the therapeutic and rehabilitation recovery programme); and on the other side – for public security – to effectively sanction the objective and subjective most dangerous behaviour (see the ‘new’ Art. 75 bis). For obvious reasons of space, only the criminal sanctions will be the object of examination in this paper.


The use of “light” and “hard drugs”

Before examining the concrete functioning of the “new” criminal sanctioning system, it is necessary point up an important modification which characterizes the charts of the narcotic substances and the consequent sanctioning treatment of same.
As is known, until the Reform of 2006, the substances subject to control were divided in six tables, approved with the Ministerial Decree 23rd August, 1977, and subsequently modified and integrated at different times (see the preliminary text of the Articles 13 and 14 of the DPR No. 309/90).
Tables I and III listed the “hard drugs”, i.e. those which produce effects on the central nervous system and cause physical and psychic addiction in the user: among these are, opium and its derivatives; the cocaine leaves and its alkaloids; the amphetamines that stimulate the nervous system (among these, ecstasy or MDMA); the tetrahydrocannabinol (a compound that is the main active ingredient of cannabis) and its analogies; the barbiturates of a high hypnotic and sedative effect.
The “light drugs” were listed in Tables II and IV, for which the physical and psychic addiction is of a minor and less severe intensity than those substances listed in Tables I and III: among these, cannabis indica and its derivatives (hashish and marijuana) and the products in current therapeutic treatment which, having in their composition some of the substances listed in Tables I and III, could present problems of addiction.
Finally, in Tables V and VI, products used for therapeutic ends were listed, which, for the fact that they contain some substances listed in the preceding tables could, with incautious use, cause the danger of addiction and, anyway, were thought opportune to be subject to control by the Authorities. Among these are the tranquillizers, antidepressants and the psycho-stimulants.
With the Reform of 2006, and with a noteworthy change in perspective, the differentiation between “hard drugs” and “light drugs” has disappeared, which, however, conforms to equalization standards according to the sanctioning profile (see the “new” Articles 13 and 14 of the DPR, No. 309/90).
All prohibited substances (i.e. which have no therapeutic use and, therefore, cannot be prescribed) are listed in a single table, (Table I): to be precise; opium, cocaine leaves, cannabis indica and amphetamines are likewise collocated in the same table.
In another table, instead, (Table II)sub-divided in five different sections, ordered from A to E) are listed medicines regularly registered in Italy, which contain narcotic or psychotropic drugs and which, as such, although having healing properties, can become subject to misuse. Among these, in particular, are listed (section A of Table II) medicines employed in “pain therapy” (attached III bis to the DPR, No. 309/90) and other substances which are often misused, and can induce a physical and psychic addiction comparable to the prohibited substances listed in Table I.
As we shall see, for these medicines a substantial assimilation to the prohibited substances of Table I is provided for: in the sense of being subject to mere administrative sanctions, rather than criminal sanctions, also in cases of mere possession in the absence of medical prescription or in quantities superior to that prescribed (see Art. 73, para.1 bis, letter (b) of the DPR, No. 309/90. “The use of light drugs and hard drugs” in the new criminal sanctioning system was motivated, as an accompaniment to the governmental law project, by the need to adhere to the “most recent and accredited conclusions of the toxicological science”, according to which the main active ingredient present in some narcotic substances is “incomparably” higher than in the past: i.e. it was seen, above all, with regard to cannabis, where – due to different cultivation methods – the main active ingredient (tetrahydrocannabinolo or THC) has increased from the 0.5 to 1.5% that characterized the derivatives of cannabis in the 70’s and 80’s, to the present values equal to 20-25%, with even higher points.
Such assimilation is the result of a discretionary choice by the legislature based on the adhesion to a determinate scientific opinion which, obviously, can be analytically opposed – the opposite opinion being based on the non-utilization of the substances because of the gravity of the effects which they are able to cause.
Both opinions do not present, obviously, decisive character sufficient to controvert the opposite opinion, but it would be futile to deepen the argument at this juncture.
Rather more, taking account of the legislative choice, it should be considered that to offset the objective worsening of the treatment that derives for the ex “light drugs” – certainly appreciable – in an overall evaluation of the sanctioning equilibrium, the “compensatory” choice of reducing the minimum edicts (frankly excessive) of the original formulation of Art. 73, para 1 is presented, in order to allow the judge to apply the sanction adequately, and this with precise attention also to the “nature” of the substance, object of the incriminated behaviour. The “reduction” favours, as is obvious, only the ex “heavy drugs”, for which the minimum edict of the sanctioning treatment was fixed at eight years imprisonment.
In the same perspective, to offset the rigorous choice of “equalization” between the substances, intervention has been made on the mitigating circumstances of the ‘fact of minor entity’, introducing the indisputable favourable choice of applying – rather than the penalty of a fine or imprisonment – that of public utility work (Art. 73, para 5 bis, of the DPR, No. 309/90).

TABLE I

Opiates ( morphine, eroine, metadone etc.)

Cocaina

Amphetamine and amphetamine derivatives i (ecstasy and designer drugs)

Hallucinogens (LSD, mescaline, psylocilline, phenciclidine, ketamine, etc.)

Tetrahydrocannabinol – THC

Cannabis indica

TABLE II

Morphine and opiates

Barbiturates

Benzodiazepine (diazepam, flunitrazepam, lorazepam, etc.,)

Amphetamine anorectics (amphepramone, benzamphetamine)

Cannabinoid medicines

www.ministerosalute.it

To this must be added a further consideration which regards the sanctioning treatment applicable to those found in possession of narcotic substances of different type and nature. Previously, while the cases covered by the original paragraphs 1 and 4 of the Art. 73, dedicated respectively to the “light” and “heavy” drugs, set out two distinct cases of crime. Those who were found in possession of “heavy” and “light” drugs answered to two different crimes, united under the tie of the “principle of continuation” : ergo, the penalty for the more serious case covered by paragraph 1, increased “up to three times” for the violation also of paragraph 4. Now, the modified sanctioning system determines that conduct of this kind – given the fact that the sanctioning distinction based on the type of substance no longer exists – sums up to one crime only. Reasonably, all conditions being equal, the sanctioning treatment can be more mitigated because the “principle of continuation” no longer finds application, which although inspired favour rei, always finishes with determining, at the rate of the plurality of the crimes in dispute, an increase of the basic penalty provided for the most serious.
The considerations on the equalization of narcotic substances offer the occasion to remember that, in our System, the sanctioning system of narcotics is based on the Table principle, which punishes (solely) the illicit conduct that concerns (solely) the substances listed in the Tables: Articles 13 and 14 of the DPR, No. 309/90.
As has been seen, with the Reform of 2006, the substances subject to control are sub-divided in two Tables only (compared to the six which characterized the original regulations), attributing to the Health Ministry, the task of forming, modifying and implementing these Tables (Art. 13 of the DPR, No. 309/90).
Delegating to the Ministry of Health, and that is, to an administrative authority, the jurisdiction regarding the formation and modification of the Tables, establishes the construction of the criminal cases in matters of narcotic or psychotropic substances as “blank criminal regulations”, in which the sanction is determined with legislative act, while the illicit conduct is described only in part: i.e. the single substances having to be specified by the disciplinary Ministerial Decree (and the same applies mutatis mutandis, for the administrative illicit conduct).
In our opinion, there is no violation of the constitutional principle of legality of the punishment established by the Art. 25, para 2, of the Constitution, insofar as, according to the interpretation provided by the Constitutional Court (2)), in this respect only the Law (or an equipollent act) of the State is necessary to establish with what disciplinary measure must the transgression be suppressed, and, likewise, it is necessary and sufficient that it is the Law of the State (or an equipollent act) – it does not matter whether it is the same law which provides for the criminal sanction, or another law – to indicate, with sufficient specifications, the implications, the character, the content and the limits of the measures of the non-legislative authority, to the transgression of which must follow the punishment.
This, without doubt, is verified in the case in point, insomuch as the Articles 13 and 14 of the DPR, No. 309/90, contain an analytical indication of the criteria which the Ministry of Health must refer to for the identification of the single substance, also providing for a guaranteed way of approval of the Ministerial Decree, assuming the consultative intervention of other technical-administrative bodies.
Any other more rigorous discipline would over-burden the system, among other things, making impossible that prompt updating of the lists, in relation to the rapid evolution of scientific acquisitions, and to possible international agreements. The latter is held in particular consideration by the Law (see Article 13, para 2, of the DPR No. 309/90), to guarantee a rapid and uniform sanctioning response to the phenomenon of narcotics (which explains the opportune streamlining of the updating procedure, through the reduction of the number of administrative bodies involved – which is what has been realized with the Reform Law).
The adoption of the Table system of the substances subject to control determines, as is obvious, that only the conduct that regards the substances listed in the Tables can be sanctioned, both criminally and administratively.
In fact, the repressive system of the narcotic substances is qualified by the absence of a comprehensive notion of “narcotic substance”, resulting, somewhat, constructed on the principle of the “Table” of the prohibited substances: in the manner that they are to be considered “narcotic substances” and as such, subject to control and in such case, only those which result expressly listed in the “Tables” attached to the regulative law are prohibited. These “Tables” perform the function of “integrating” the incriminatory regulation into the part relative to the identification of the material object of the conduct (and the same applies, mutatis mutandis, for the administrative illicit conduct).
It seems useful to stress the necessity of the complete and prompt updating of the Tables, to avoid punishment of the conduct regarding substances which although dangerous, are not listed on the Tables and consequently, problems arising in the judicial practice in relation to cases relative to narcotic substances not (yet) entered in the Tables (3).
An urgent problem arises from the so-called new drugs (synthetic and ethnic drugs) and for the ‘smart’ drugs (for the most part natural, but also synthetic, sold freely in the ‘smart’ shops or on the internet, which, however, produce stimulating and hallucinogenic effects similar to those of the prohibited substances).
Recently, the Ministry of Health has, opportunely, moved to include in the Tables of prohibited substances, certain plants containing LSA – lysergic acid starches – until now sold freely, which when masticated, the seeds are able to provoke hallucinations similar to those of LSD: argyreia nervosa or Hawaiian rose, purple ipomea and corymbose rivea (4).


The facts of criminal importance

To discriminate between facts of mere administrative importance and facts of criminal importance, variously combined reference parameters have been introduced, correlated to the destination of the narcotic substance, to the quantity of same and to the overall modality of the conduct. This for the obvious scope of avoiding those operative uncertainties determined by the previous system, as modified following the Referendum of 1993, which, as mentioned, functioned through the notably ample discretional margin of evaluation when the case under examination was not objectively characterized by the destination of the substance to third parties, ascertained by the flagrancy of the act.
The regulations of immediate reference are those contained in Art. 73, where illicit conduct finds it disciplinary sanctions – illicit conduct regarding both the prohibited narcotic substances and the medicinal substances susceptible to misuse.
The sanctioning treatment, in fact, distinguishes between the prohibited substances referred to in Table I (particular reference, Art. 73, paras 1 and 1 bis, letter (a)) and the medicinal ones included in Table II (ref: Art. 73, paras 1 bis, letter (b), and 4).
Among these last, a more rigorous regime is seen only for those referred to in Section A, B and C, which are considered to be more dangerous for the effects deriving from misuse.
In particular: for all these medicinal substances, the conduct of trafficking or, in any event, destination to third parties, is seen as a crime, in the same way as for the substances merely prohibited, reference Table I,( the penalty is, however, decreased by a third to a half) (Art. 73, para 4.); only the substances of Section A are substantially equal to the treatment of the prohibited substances in Table I, also as far as the mere possession is concerned (and the conduct of usage, because it is not qualified ex se by the destination to third parties, or rather to a use that is “not exclusively personal”: such as importation, exportation, buying or receiving), in the case in which the quantity is in excess of that legitimately prescribed by the Health Department (Art. 73, para 1 bis, letter (b)). Also in this case the penalty is decreased by a third to a half).
Therefore, the novum criminal sanctioning system is, opportunely, diversified according to the incriminated conduct regarding the prohibited substances listed in Table I or the medicinal substances susceptible to misuse, referred to in Table II, Sections A,B and C.


The criminal sanctions: the prohibited substances

Worthy of attention are the regulations concerning “prohibited substances of Table I”, which do not have any therapeutic use and, therefore, cannot be prescribed: in other words, the substances that monopolize the illicit market and concern the forces of law and order and the judiciary. The combined regulations of reference are laid down in paras 1 and 1 bis, letter (a), and the DPR, No. 309/90.


The conduct “objectively” characterized
by the destination to third parties

Also stressed in the new system introduced with the Reform Law of 2006, Art. 73, para 1, is the criminal importance of the conduct characterized by destination to third parties, irrespective of the quantity of the substance. Apart from two acts of criminal conduct included in para. 1, which require more specific elucidation, there are no new elements in this area with respect to the previous system.
We refer to the conduct of cultivation and transportation, which ex se are not self-evidently demonstrative of the illicit destination (to a non-exclusively personal use) of the drug.

It should be pointed out that the conduct of cultivation, also after the novum regulations of 2006 – with the evident knowledge of the legislator – is not mentioned either in Art. 73, para 1 bis, or in Art. 75, para 1, but only in para 1 of Art. 73.In substance, the legislator wanted to consciously attribute to such conduct, always and in any case, a criminal importance, whatever the dimensions of the plantation, whatever the quantity of the main active ingredients extracted from the flowers, the leaves etc. of the narcotic plants.
The legislator ended with adhering, therefore, to the prevalent case law opinion (5), held also by the Constitutional Court (6), according to which the conduct of cultivation is intrinsically more serious compared to that of mere possession Since it increases the quantity of drug in circulation, it merits a different and more serious sanctioning treatment (ergo, always criminal importance of the relative conduct and the entire exclusion of any sanctioning intervention which is solely administrative, ex Art. 75 of the DPR No.309/90, even in the presence of cultivation of the most modest dimension, the yield of which is inconceivable for destination to the criminal market).
The subject has been stressed even more recently, being reaffirmed that the activity of cultivation – (under para,1 of the Art. 73 of the DPR. 9th October, 1999, No. 309, as modified with the law decree 30, December, 2005, No. 272, converted, with modifications, by the Law, 21st February , 2006, No. 49, and analogously to what was provided for before such reform under the combined regulations of the previous Articles 26, 73 and 75 of the same DPR) – is prohibited and criminally sanctioned, even if the finality of the product of cultivation is intended for personal use only (7) .
This viewpoint of severity appeared excessive, (already in the original text of the DPR No. 309/90) and still appears excessive (also after the modifications of 2006) at least with regard to the conduct of “domestic” cultivation of a few plants, destined to yield an extremely small quantity of main active ingredients, inasmuch as the risk of destination to third parties is more or less invalid, (on the contrary, there is no proof of “a non-exclusively personal use” of the yield of the cultivation) and, likewise, the risk to the individual health of the user-cultivator is invalid.
Here, the necessity (essentially for reasons of fairness and reasonableness of the sanctioning treatment ) of finding, interpretively, a balanced solution which – without opposing the intention of the legislator and without contradicting the honourable foundation of the dominant jurisprudential orientation to which the legislator has evidently adhered – can allow for the exclusion of the criminal sanctioning for the conduct of “cultivation” of very few narcotic plants that are clearly intended to satisfy only the personal use of the cultivator.
A balanced solution could and can still be found by distinguishing the cultivation – understood in the “technical-agrarian” sense, which is expressly taken into consideration and disciplined in Articles 26-28 of the DPR, No. 309/90 – from the modest activity of the so-called “domestic” cultivation, which consists in the planting by a drug addicted person “in vases kept in his/her own habitation of some small plants of narcotic or psychotropic substances”.
In fact, in this last case one could reasonably sustain that it is outside of the notion of cultivation taken into account in the cited Articles 226-28 of the DPR, and as such the conduct could be “extensively” included in an hypothesis of possession which is effected by administrative sanctions only, under the regulations of Art. 75, of the same DPR. – that is, if elements are lacking that can demonstrate a destination of the yield of the cultivation to a “not exclusively personal use”. Ergo, elements which can permit the accuser to satisfy the probative obligation of illicit destination of the narcotic substances to the ends of the appropriate contestability of the crime obtaining to the Art. 73 of the DPR, No. 309/90.
This interpretative thesis has recently found important approval in the case law of the Supreme Court (8), wherein dignity was attributed to the recalled notion of “domestic cultivation”.
It deals with an interpretation which, far from violating the basic concept of rigour in the sanctioning regulations of narcotics, stressed with force also by the legislator of the 2006 Reform, avoids the unreasonable result of punishing always and in any case the small user-cultivator of negligible quantities intended to satisfy personal needs. Also in situations where the conduct would be, obviously, criminally irrelevant when that same subject – having “terminated” the activity of cultivation – was surprised in possession of the yield of such activity.
It remains to be added that for conditions of “domestic cultivation”, it is certainly not necessary that the activity be carried out within the walls of the habitation or on an adjoining balcony/terrace. In fact, nothing excludes that the planting be done in a garden or in agricultural ground, not even contiguous to the habitation of the person involved. It is, however, essential that it concerns, in hypothesis, cultivations extremely contained in dimensions, such as to yield very low quantities of narcotic substances, because only in this case the destination to ‘ a not exclusively personal use’ of the cultivator would not be logically and juridically demonstrable.
Only in this case, in fact, this cultivation activity would be lacking in those characteristics which the above cited sentence of the Supreme Court hold to be those of the criminally important cultivation in the technical sense: the availability of land, its preparation, the sowing, the management of the development of the plant, the presence of local people for the harvest of the product. Characteristics which, in all evidence, imply the dangerousness of the conduct and justify the criminal sanctioning of same.

Some perplexity has arisen regarding the conduct of transport. It has been maintained that it concerns conduct with respect to which the concept of the destination of the narcotic substance ‘to an exclusively personal use’ cannot be excluded, with the consequent unreasonableness of the application of sanctions other than the administrative sanctioning (Art. 75 and 75 bis, of the DPR, No. 309/90.
This time, in our opinion, it is a false problem, insomuch as the incriminatory element referred to in Art. 73

photo Ansa

of the DPR No. 309/90 is composed of regulations of alternative kinds, with consequent absorption of the “minor” conduct when plural acts are committed in the same space-temporal context and with regard to the same narcotic substance. In the vast majority of cases, therefore, the conduct of transport does not have its own independent sanctioning importance compared to the conduct of possession or disposal. When, on the contrary, the conditions of absorption are not present and, therefore, the conduct of transport maintains its own autonomy to the sanctioning ends, it is empirically evident that it must concern conduct which – to differentiate from possession, buying, importation etc., - must imply a quantity of narcotics which necessitates a means of transport (evidently the means of carrying on one’s person or in a handbag being impractical): it is precisely the quantitative dimensions of the narcotic

substance which demonstratively indicate the destination different from an “exclusively personal use”. This excludes ab imis any substantial censure of unreasonableness of the disciplinary regulations.


The conduct not “objectively” characterized
by the ‘destination to third parties’

Paragraph 1 bis, letter (a) of the Art. 73, provides for the criminal importance of the conduct of drug possession ex se not objectively intended, for third parties (example: trafficking etc.,) which “seem”, for the subjective and objective modalities (“for quantity, in particular, if superior to the limits indicated in the decree of the Minister of Health, issued jointly with the Minister of Justice, the Presidency of the Council of Ministers-National Department for Anti-drug Policies: modality of presentation had regard for the overall gross weight or the divided packaging or for other circumstances of the act”),destined to third parties, more exactly, to a “not exclusively personal use ”.

This is the real innovation of the Reform Law of 2006, which was followed through the regularization of the evidence criteria currently used, in law, to found a positive judgement of the existence of the crime – Art. 73 of the DPR, No. 309/90, with respect to the conduct of (purchasing, importation, possession etc.,) ex se not objectively qualified by destination to third parties.
Undoubtedly, that which remains still valid, also in the new system, is the principle, according to which, the proof of the existence of the destination of the substances to a “ not exclusively personal use” constitutes a “constituent element” of the crime – Art. 73 and, as such, is the responsibility of the accuser (in the first place, the police operator and then, the Public Prosecutor)(9) . The accuser, in addition, to satisfy this probative obligation – when the proof is not in re ipsa, as demonstrated by the conduct, objectively characterized by the ‘destination of the substance to third parties: see para 1, of Art. 73) – finds, this time, evaluative support in the evidence parameters indicated by the regulations: the “quantity” of the substance (with the attributive importance of exceeding the limits of the main active ingredient indicated in the Ministerial Decree); the “modality of the presentation” of the substance (gross weight, divided packaging in commercial doses); “the circumstances of the act” (objective circumstances of the seizure, discovery of cutting substances; discovery of “accounting records” attesting to the illicit commerce, etc.) (See. para 1 bis, letter (a), of Art. 73),With respect to the probative obligation - which the accuser must satisfy through positive argumentation based on the above cited parameters, that the destination of the substance is to a “not exclusively personal use”, the accused has an “obligation of allegation” to the contrary. In the sense that he can make an opposite deduction from the probative elements, in his own favour, demonstrating the destination of the substance to “exclusively personal use”, so that with the non-existence of the incriminatory factor, only the administrative sanction can be applied (now provided for by Articles 75and 75 bis of the DPR, No. 309/90).
This, it must be clearly stated, is in no way, inverting the obligation of the proof of the criminal responsibility, which is certainly incumbent on the accuser, but to establish the “factual perimeters” within which the judge can exercise his evaluation, once the fact brought by the accuser is proven.
In fact, that which is established by the Article 2697 of the civil code is also valid in the criminal trial: it is incumbent on the actor (here, the Public Prosecutor and, before him, the police authority) to prove the facts that constitute the foundation of the case for prosecution (here, the demonstration of the destination of the drug to a “not exclusively personal use”); incumbent on the convened (here, the person under investigation/the defendant to prove the facts of the reality which render ineffectual those put forward by the actor or – translating the precept into criminal terms, the facts that impede punishment (here, the demonstration of the destination of the drug to an “exclusively personal use”.
It is obvious that this ‘allegation obligation’ with defence finalities, will be much more difficult to satisfy, the more unequivocally significant the destination to a “not exclusively personal use” results from the evidence parameters in the incriminatory regulations. For example, in presence of quantities significantly superior to the limits of the main active ingredients listed in the Ministerial Decree, it would be very difficult for a subject who is not a drug addicted person to sustain, with success, that it was drug in possession for “reserve” or “accumulation” for his own future personal use. It would be easy to counter, at least in part, that the drug could not but be destined to the market (or more specifically, to a “not exclusively personal use”), with the consequent contestability of the crime - Art. 73. While, in presence of inferior quantities or near the above mentioned threshold – the referred quantity alone not being able to solve the problem of the proof of the destination to a “not exclusively personal use” of the narcotic substance – it must be supported by the accuser with one, or more than one, other elements of evidence obtained from the specific objective and subjective modalities of the case. For example: the ascertainment of the division of the drug into commercial doses and/or circumstances of the seizure which unequivocally demonstrate the existence of a trafficking activity. It would be very difficult for the defendant to claim ‘exclusive personal use’ in his defence. It would finish in being merely apodictic and undemonstrated, notwithstanding a given ex se not particularly significant quantity of the substance.

Without a shadow of doubt, the evidence criteria contained in Art. 73, para l bis, letter (a), can found a solely relative presumption (irius tantum) of the destination of the drug to a “not exclusively personal use”.
That it deals with a solely relative presumption (and not absolute certainty, to the extent that it admits no proof to the contrary by the defence) is deduced, in the first place, from the literal formulation of the regulations, wherein the use of the verb ‘‘to seem’’ (“seem”, as above) demonstrates that at the base of the believed existence of the crime there must always be the opinion of the judge, who, using the evidence criteria, (also, but not only: see the following on the “non-exhaustive” character of the evidence criteria), can condemn the defendant if (and only if) he considers that the destination of the drug to a “not exclusively personal use” has been fully demonstrated, in other words, ‘beyond any reasonable doubt’ (see Art. 533, para 1, of the Code of Criminal Procedure).
It is deduced from the correct logical-systematic interpretation of the various criteria: also not wanting to consider the evidence criteria based on the quantity of the substance (for which, in abstract, could hypothesize an absolute presumptive valence), all the others must be valorized to evidential ends by the necessary judicial opinion, not having of itself a self-evident and unsusceptible significance of alternative interpretation.
It is again deduced from the legislative procedure, where one considers that the governmental bill – brought to the attention of the operators of the sector, at the IV^ National Conference on the problems connected to the diffusion of narcotic and psychotropic substances (Palermo, 5-7 December, 2005) – was, in origin, characterized by a kind of absolute presumption of the existence of the crime, based on the “exceeding of a determined quantity threshold”. In fact, the criminal importance was applied also for the conduct ex se not objectively destined to third parties (i.e. exportation, purchase, receiving or in any case, possession), when the substance exceeded a determined quantity threshold. Therefore, the fact integrated merely the incriminatory type situation, without having to concretely demonstrate the possible destination of the substance to trafficking and without the transgressor being able to construct any liberating evidence to avoid the application of the criminal sanction. It was, in effect, a sort of iuris et de iure presumption, which was based on the considered dangerousness of the conduct – by reason of the quantity involved – both for the health of the subject and for the public order and collective health. The definitive text was, however, expressly modified, precisely through the elimination of such absolute presumption and the attribution of an ‘only relative presumptive valence’ (also, among the others) to the evidence parameter based on the quantity of the narcotic substance.
It is also deduced from the appraisal of the different formulation of the para 1 bis ,letter (b) of the same Art. 73 – dedicated to medicines containing narcotic or psychotropic substances and susceptible to misuse – with respect to which the crime is merely integrated in the case of exceeding the prescribed quantity, without there being space for clearing evidence on the part of the defendant, which can “justify” the possession of the substances “in excess of the prescribed”. Here, (to be frank), the only defence allegation able to defeat the presumption could be constructed on the ‘unwitting involvement in a criminal action’, asserting and demonstrating an error in which the holder found him/herself associated – perhaps on the contents of the “prescription” or on the quantity actually in possession).
It is useful to underline that since the presumption - ex Art. 73, para 1 bis, letter (a), is only relative, there can be a space for an defence allegation to demonstrate the unsuitability and the inconclusiveness of the circumstantial evidence valence put forward by the accuser, in coherent application of the Article 2697 of the Civil Code. There is not, therefore, any inversion of the probative obligation, but with regard to the argument put forward by the accuser (based on the recognized evidential valence of the parameters), it is up to the defendant to put forward elements to neutralize this valence: as already shown, it is incumbent on the defendant (the convened) to prove the facts that render ineffectual (inconclusive) the facts put forward by the Public Prosecutor (the actor).

To understand the importance of the relative presumption, it is, however, necessary to give attention to the position that the Judge assumes on the subject.
The valence of the relative presumption is inevitably judged in the light of the principle “beyond any reasonable doubt” necessary to the ends of conviction (Art. 533, para 1, of the Code of Criminal Procedure, in the text of the last modification of the Law No. 46 of 2006: “the Judge pronounces sentence of conviction if the defendant is proved guilty of the crime, beyond any reasonable doubt”). This means that the presumptively circumstantial evidence valence of the criteria legitimizes, absolutely, the Investigative Police and the Public Prosecutor to contest the crime, and it can legitimize also the sentence, as long as, however, the Judge considers that the circumstantial evidence valance exceeds the meticulous examination of “beyond any reasonable doubt”, obliged, to this end, to judge the circumstantial evidence criteria in light of the available evidence and of possible defence allegations.
To clarify: in this way the Judge will be able to sentence, in the presence of a conduct of possession of a quantity of narcotic substance in which the main active ingredient is superior to the maximum quantity indicated in the Table, if (and only if) he feels able to motivate, in light of the overall outcome of the concrete case, that “beyond any reasonable doubt” , it concerns drug which “seems” destined to a “not exclusively personal use”.
With a motivation which will be much more pondered and analytical the more the quantity nears the threshold indicated in the Table.
It is obvious that, in the face of the circumstantial evidence valence of the parameters placed at the foundation of the accusation, the eventual clearance decision of the Judge must be adequately argued and motivated, to avoid unacceptable discretional decisions: that is, the Judge must justify (“in reinforced ways”, in the presence of the compendium on evidence founded on the regularized parameters in the Art. 73, para 1 bis, letter (a) the basis of the specific reasons he considers that proof of guilt has not been demonstrated and, therefore, must give judicial notice of the elements provided, and must consider neutralized and inconclusive the circumstantial evidence valence of the parameters.
From this aspect, “the regularization” of the circumstantial evidence criteria avoids (in hypothesis) such possible discretional decisions, because it binds the discretional evaluation of the Judge. This authorizes the belief that such evidence compendium, where subsistent, can certainly be held ex se definitely satisfactory to the ends of clearance, or to the ends of “serious evidence” ( Art. 273 of the Code of Criminal Procedure) founding the qualified probability of guilt although consenting also alternative explanation of the facts (of the possession and /or other assimilated conduct) through other possible defence allegations able to controvert the accusatory valence and to positively demonstrate the destination to “exclusively personal use” of the narcotic substance.
While, with an end to sentencing, it is always necessary to apply the rule of judgement - ex Art. 533, para 1, of the Code of Criminal Procedure, where the Judge can and must support his decision on the dependent compendium on evidence, giving, however, judicial notice of the reasons why this, in light of the overall situation, is able to demonstrate, beyond any reasonable doubt, the destination of the narcotic substance to a “not exclusively personal use” which prima facia is denied precisely by the presence of one or more of the circumstantial evidence elements individuated by the regulations.

For this purpose, any automatism between subsistence of the circumstantial evidence compendium and sentence must be excluded. The circumstantial evidence compendium can certainly be held satisfactory by the Judge in relation to the sentence, as long as it satisfies the rule of “beyond any reasonable doubt”. For example, the exceeding of the quantity threshold – unequivocal circumstantial evidence parameter – can be held satisfactory in relation to the sentence, if and where the Judge considers it, with certainty, demonstrative of the destination to “not exclusively personal use”, in light of the overall situation.
This allows the avoidance of unjustified automatic conviction: for example, for modest excesses to the limited quantity of the substance in situations which are not negatively qualified by other evidence parameters, but, on the contrary, justified by the quality of the accused drug addicted person, such, to demonstrate an “exclusively personal use” of the drug (we refer to the hypothesis of the addicted person who needs constant and considerably high doses).
Regarding the proposed construction (of the “relative presumption” based on the appraisal of the evidence parameters), it seems to us that it cannot be denied that such notion would end in impairing the principle of unimpeded freedom of judgement (Art. 101, para 2, of the Constitution) and the right to defence (Art. 24 of the Constitution).
In fact, the “relative presumption” based on the circumstantial evidence parameters, is inevitably judged in light of the principle of “beyond any reasonable doubt” required to the ends of conviction (Art. 533, para 1, of the Criminal Code Procedure, in the text of the last modification of the Law No. 46 of the 2006 Reform). This means, from the viewpoint of judgement, that these parameters can and must take into account the presumptively circumstantial evidence valence of the criteria, and can found also the conviction, as long as, however, it is held that such valence exceeds the minute examination of the principle “beyond any reasonable doubt” – having to, to such end, judge the circumstantial evidence criteria in light of the available evidence and possible defence allegations. No impairment derives, therefore, for the principle of unimpeded freedom of judgement. The Judge, in fact, is required to pronounce his/her sentence, having to necessarily valorise, without preconceived limits, all the elements, objective and subjective, drawn from the concrete case.
The circumstantial evidence parameters avoid arbitrary clearance solutions, in the sense that, in their presence, the Judge must motivate (in reinforced ways) giving judicial notice of the reasons which induce him/her to consider “neutralized” or not “decisively significant”, the accusatory valence. No impairment, therefore, derives for the right to defence , since, as argued above, the probative obligation of the crime is always the responsibility of the accuser and the allegation obligation which the defence has to deny the circumstantial evidence valence of the elements put forward by the accuser, does not determine an inversion of the probative obligation It results only in the coherent application of the rule of judgement, pursuant Art. 2697 of the Civil Code, absolutely applicable in criminal matters. It should be added that, differently argued, in other words, wanting to exclude that the evidence parameters outlined by Art. 73, para, 1 bis, letter a) found a relative presumption in the terms and with the limits mentioned, one would arrive at the frankly unacceptable conclusion that it concerns a useless normative provision.
At the same time, it must neither be forgotten that the principle of the “presumptions” is not unknown in the criminal law, the same having constructed also various incriminatory cases in point. It suffices to mention, only as an example, the contravention, pursuant to Art. 707 of the Criminal Code, where the Legislator, by reason of the personality of the accused (condemned for crimes determined by motives of profit or for contraventions concerning the prevention of crimes against personal patrimony), and by reason of the direct and immediate availability of the burglary instruments, found “the presumption” of a probable illicit utilization of these, in this way not incriminating a mere status, but rather, a criminal conduct constituted by the actual possession of certain items which, quoad personam, lead to suspicion.

It should be added that the “parameters of circumstantial evidence” have particular prominence also for the Investigative Police, who can glean from them elements symptomatic of the destination of the narcotic substances to a “not exclusively personal use”, as to be able to found a possible provision for the ‘arrest in flagrancy’ of the transgressor that withstands the meticulous examination of the Judge of the validation.
In any case, it should be remembered that the evaluation of the Judge on the legitimacy of the arrest, in fact, although not being able to be extended to the verification of the serious evidence of guilt must, nevertheless, be in agreement with the verification of the subsistence of the conditions legitimizing the privation of personal liberty, in which conditions must be included the configurability (not only abstract) of the crime which led to the arrest and its attribution to the person arrested; with the consequence that the mere possession of narcotic substances would not legitimize the arrest in flagrancy when elements symptomatic of destination to third parties do not emerge.

Also the Supreme Court has recently expressed itself in terms coherent with the referred construction of the “relative presumption”, with a decision (10) which, in fact, expressly affirms that the circumstantial evidence parameters - Art. 73, para 1 bis, letter (a) are usable for the positive demonstration of the illicit destination (to a not exclusively personal use) of the narcotic substance in possession, “weighing these circumstantial evidence parameters as a sort of relative presumption of such illicit destination which assumes particular prominence, above all, for the activities of the Investigative Police, who can glean from them elements symptomatic of the destination of the narcotic substances to a “not exclusively personal use”, as to be able to found a possible provision of “arrest in flagrancy” of the transgressor that withstands the meticulous examination of the Judge of the validation”.

The criterion of the “quantity” is proportional, in absolute clarity, to the main active ingredient found in the substance. It is an assertion that cannot be doubted. If it is true, in fact, that the firm belief of the narcotic nature of the substance can well be drawn also from elements other than the expert analysis or from the narcotest – such as admissions of the defendant; the content of the interceptions, the police investigations or any other element of unequivocal significance (12) – the fact remains, nonetheless, that to formalize a notification based precisely on the circumstantial evidence parameter of exceeding the quantity threshold as indicated in the Tables, the technical investigation is ineluctable, not being replaceable with other means of proof able to demonstrate, with precision, the percentage of main active ingredients contained in the substance.
Relative to the valence to attribute to the criterion of the “quantity”, the importance must be underlined, in the regulations, of the use of the expression “in particular”, correlated to the fact of the substance being “superior” to the maximum limits established in the special Ministerial Decree (“for quantity, in particular, if superior to the maximum limits…”).
Such formulation shows that the incriminatory regulations, as we can see, are not constructed in such a way that the absolute presumption of existence of the crime is fundamental, even in presence of exorbitant quantities which exceed the threshold values, and, therefore, authorizes the reconstruction of the system in the following terms:
a) the circumstance in which the substance results “superior” to the maximum limits indicated in the Ministerial Decree integrates positive circumstantial evidence “usable” by the accuser to consider demonstrated, the destination to a “not exclusively personal use”;
b) consequently, the more the threshold in the Decree is exceeded, the more difficult becomes the effort that the defendant must sustain for the allegation of defence elements that can defeat the circumstantial evidence valence of the quantitative parameter;
c) the formulation of the regulations, precisely for the prominent use of the term “in particular”, nevertheless, does not exclude the criminal importance also of quantities inferior to the threshold limits, whereas, the other circumstantial evidence parameters serve, unequivocally, as a valid support, for a destination to a “not exclusively personal use”;
d) the exceeding of the threshold values is not always sufficient element to sustain the existence of a crime: this is obvious in the case where the defendant is able to fulfil the defence obligation in the terms of which supra sub b). Therefore, to be clear, especially if the maximum values are exceeded by a small amount, the other parameters of reference utilized by
the regulations can and must usefully assist, and can found the positive demonstration of the illicit destination (“to a not exclusively personal use”) of the substance. While, conversely, nothing excludes that the exceeding of the maximum values by a small amount, in the absence of other circumstantial evidence elements by the prosecution, and in the face of an adequate “defence justification” (based principally on the subjective quality of the addicted person and of his/her necessity to use particularly high quantities of the narcotic substance ), can lead to a clearance decision in criminal court (and to the application of administrative importance only, to the conduct). In other terms, to make an example, the particular subjective conditions of the transgressor – legitimizing, due to the state of drug addiction, possession of a quantity superior to the threshold values to satisfy special needs of usage – can have importance in the ambit of the obligation of defence allegation, mentioned previously, to defeat the presumption (iuris tantum) of the existence of the criminal offence put forward by the prosecution based on the fact that the given quantity exceeds the threshold values.

At this point it would be useful to turn our attention to the Decree that determined the maximum limits of the main active ingredients allowable in possession, to the ends and purposes of Art 73, para 1 bis, letter (a): or rather, that determined that which, in the same Decree is defined as “the maximum quantity allowable in possession”, the exceeding of which can consider valid, in the terms and with the limits of which supra, the presumption that it regards substance destined to a “not exclusively personal use”.
Concerning the Decree of 11th April, 2006, adopted by the Minister of Health, jointly with the Minister of Justice, containing the indication of the maximum quantitative limits of narcotic and psychotropic substances that can be related to an “exclusively personal use” of the substances listed in Table I of the DPR, No. 309/90:
In the meantime, it is to share the choice of the Legislator of having delegated this task to the administrative authority, because of the excessive rigidity which would ensue from a prevision introduced directly by the Law. In fact, it is a matter in which the need of guaranteeing prompt adaptation to any unexpected events in the illicit market is pre-eminent. For example, in the case of “new ”narcotic substances, or rather, in the case of a significant change in the percentages of main active ingredients which, in time, have characterized some of the substances already listed in the Tables.
Just for having delegated this jurisdiction to the administrative authority allows for rapid corrective or integrative interventions.
In this regard, it does not seem that there is any violation of the principle of legality established by Art. 25 of the Constitution, for the reason that the administrative authority is simply given the individuation (rectius, the materialization) of one of the parameters of reference utilizable in demonstrating the subsistence of the crime, and not certainly the reconstruction of the conduct constituting the crime.
Always in a preliminary way, it is to share the choice taken of not providing for the individuation of the maximum limits of the ‘quantities allowable in possession’ for all the prohibited substances, being legitimately and not unreasonably restrained, the determination of such limits being placed only on the substances of major misuse,, (cocaine, heroin, hashish, marijuana, etc.,).
In reality, an operation of determination for the other substances would be arbitrary, at least, at the moment, due to the lack of reliable scientific and statistical data.
Anyway, what legitimizes this limitative solution is the fact that the quantity of main active ingredients constitutes no more than one of the reference parameters usable to demonstrate the illicit destination of the drug.
Obviously, with respect to the substances where the determination of the “maximum quantity allowable in possession” is lacking, the use (only) of the other circumstantial evidence parameters indicated in Art. 73, para 1, letter a), can and must be made.
The content of the Ministerial Decree de quo
The point of departure of the determination of the maximum limits of the main active ingredient – (or rather, as mentioned, of the “maximum quantity allowable in possession”: - letter a) of the para1 bis, of the Art. 73, if, in excess, leads to the relative presumption of the subsistence of the ‘not exclusively personal use’ of the drug, and therefore, of the crime of the same Art. 73) – is represented by a single sure scientific data that the Study Commission at the Ministry of Health has been able to furnish: that of the “single average dose” understood as “the quantity of main active ingredient per single dose suitable to produce a narcotic and psychotropic effect in a tolerant addicted subject”.
The quantitative data of the “single average dose” has been conventionally “multiplied”, having consideration for a “variable multiplier” calibrated “in relation to the characteristics of each substance, with particular reference to the ability of inducing behavioural alterations and deterioration of the psychomotor capacity”: in short, having consideration for the major or minor dangerousness recognized in the substance.
In this regard, it should be noted that the multiplier has been opportunely diversified according to the type of narcotic substance: so, for example, for the ex-“light drugs” (the derivatives from cannabis: hashish and marijuana) the multiplier has been

calculated in decisively larger terms (multiplier 20) (in consideration of the evidently recognized minor dangerousness of such substances) compared to what has been provided for stimulants, the narcotics and hallucinogens. This demonstrates how the “equalization” of the narcotic substances pursued by the Legislator of 2006, does not exclude that there is a space reserved for the more favourable treatment for the ex- “light drugs”, which mitigates the worsening of the overall sanctioning treatment determined by the aforesaid equalization. Exemplification: for cannabis (hashish and marijuana), the single average dose has been fixed at 25 mg, the variable multiplier at 20, obtaining a maximum quantity allowable in possession equal to 500 mg (corresponding to around 15/20 ‘joints’); for heroine, the single

average dose has been fixed at 25 mg, the multiplier at 10, obtaining a maximum quantity allowable in possession equal to 250 mg (corresponding to around 10 doses; for cocaine, the single average dose has been fixed at 150 mg, the multiplier at 5, obtaining a maximum quantity allowable in possession equal to 750 mg (corresponding to around 5 doses); for ecstasy, the single average dose has been fixed at 150 mg, the multiplier at 5, obtaining a maximum quantity allowable in possession equal to 750 mg (corresponding to 5 tablets /doses; for amphetamine, the single average dose has been fixed at 100 mg, multiplier at 5, obtaining a maximum quantity allowable in possession equal to 500 mg, (corresponding to around 5 doses); for LSD, the single average dose has been fixed at 0.05 mg, the multiplier at 3, obtaining a maximum quantity allowable in possession equal to 0.150 mg, (corresponding to around 3 stamps/doses).
The criterion of “quantity”, as developed by the regulations, can be usable also to the ends of the application of the mitigating circumstances of the “fact of minor entity”, Art. 73, para 5, of the DPR, No. 309/90, to give concreteness to the parameters of the “quantity” and “quality” of the narcotic substances indicated therein.
Under the first profile, it is to anticipate that the law will be oriented to take into consideration the thresholds indicated in the Tables to parameterise also the quantitative that can consent to the concession of
mitigating circumstances de qua (even though, obviously, always in the ambit of the “overall” judgement of the different reference parameters, fundamental to the correct interpretive reading of the “fact of minor entity” (13)).
Under the other profile, since with the “multiplier” a different “qualitative” valence is attributed to the different narcotic substances, this argument can be used to attribute an importance (also) to the “nature” of the substances to the ends and purposes of the mitigating circumstances of the “fact of minor entity”, thereby overcoming that orientation, until now consolidated [in the discipline in force before the Reform of 2006], in force of which for the parameter of the “quality” required by the para 5, of Art. 73, it could attribute space only to the major or minor “purity” of the narcotic substance, but the nature of same remaining indifferent (14).
So, to clarify: for the derivatives of cannabis, where a minor dangerousness is recognized, so as to utilize the multiplier “20”, a larger space for the conceding of the “fact of minor entity” can be recognized (as long as, obviously, the other parameters indicated in para 5, of the Art. 73) do not constitute a legal impediment.

It must, however, be observed that the evidence criterion of the “quantity”, precisely because it is correlated to the percentage of main active ingredients, seems of scarce usefulness to the police, who, in the first instant, can avail themselves only of the narcotest or of other analogous methods, can only have knowledge that the seized items contain narcotic substance, but they cannot calculate, “on the road” the percentage of main active ingredient.
Therefore, the recourse, on the part of the police operators, to the other circumstantial evidence criteria indicated in Art. 73, para 1 bis, letter a) will be inevitable, while the “quantitative” criterion will be concretely useable only for the Judicial Authority, which can, however, avail itself of the support of a technical toxicological verification able to furnish the quantum of main active ingredient actually contained in the seized narcotic substance.

For right information, it should be remembered that with the Decree of the Ministry of Health of 4th August, 2006, there was an intervention to modify the Decree of April 11th, 2006, indicating the maximum quantitative limits referable to “an exclusively personal use” of the narcotic substances, providing to re-determine “by increasing” the “maximum quantity allowable for possession” of cannabis.
To pursue the aim of increasing the quantitative of cannabis, as one remembers, intervention was made on the “variable multiplier” of the “single average dose” (passed from “20” to “40”), so that the maximum quantity allowable for possession of the substance – the exceeding of which would be considered basis for the presumption that it concerned substance to a destination of a “not exclusively personal use” (ref. Art. 73, para 1 bis, letter a) – was determined at 1000 mg, while in the original text of the ministerial Decree of 11th April, 2006, it was fixed at 500 mg.
The Tar Lazio (Regional Administrative Tribunal of Lazio) first suspended (15) and then annulled (16) the modification decree on the multiplier parameter of cannabis on the basis that the motivation of the act did not explain the reasons of the choices taken, neither did they appear justified on the basis of specific examination on the effects of the narcotic substance in question.
In essence, the Tar qualified the intervention of modification on the limits of cannabis as a result of a choice of a solely political nature, supported by a justification of a technical nature such as that which had characterized the drawing up of the original text of the Decree. The annulment decision seems founded on the believed existence of the ‘vice of the excess of power’, symptomatically demonstrated by the absolute lack of the preliminary investigation activities which should have been able (rectius, owed) to characterize the discretional decision of the Administration.
As it clearly emerges from the appliance of the sentence, Tar has not, in any way, undermined the Ministerial Decree of the 11th April, 2006, which – in the text form that is clearly prior to the modifications “annulled” by the Administrative Judge – is still in force. It is this Decree that must have integral regard for the determination of the maximum quantitative limits referable to an “exclusively personal use” of the narcotic substances.

Also the criterion of the “gross weight” of the substance appears to us rather useless, both in general and in particular, for the immediate determinations of the Police.
As a matter of fact, it is a criterion which should be concretely developed with special directives and circulars that are based on statistical data of the drug seizures and of the percentages of main active ingredients found therein, from which it is possible to deduce an evidential valence by comparing said results with the data drawn from the Tables of the maximum quantities allowable for possession (in the sense that lacking, up to now, a ministerial circular with effects on all the national territory, some police forces are moving on a territorial base (17)).
It is, however, a necessarily residual criterion because it is, and always will be, too empirical: indeed, given the factual data that the substance is never in a pure state, the quantitative of main active ingredient is always very variable because it is strongly conditioned by the packaging modality (street doses, oval capsules destined to further parcelling out etc.,); indeed, the vegetable substances (marijuana and hashish) are even more unsusceptible to a “statistical” classification, since they undergo further conditioning according to the place of production and preservation. This impedes the ability to attribute a really reliable evidential valence to the criterion.
To be frank, it deals with a criterion (inevitably) of “a side dish” useful to corroborate evidential valance aliunde appreciable by reason of the overall emergence of the case in point.
While awaiting the above stressed possible operative handbook, the application of the criterion de quo is, however, left, within the limits of possibility, to the experience of the police operator, who must base his opinion empirically on the significance that a quantitative of a considerable amount, especially if accompanied by the finding of cutting substance, is normally destined to be “cut” for the subsequent sub-division in doses (the number of which, more or less elevated, can be indicative of the destination to a “not exclusively personal use”).
Inevitably, moreover, where it is wished to proceed to prosecution of the crime, ref: Art. 73, only on the basis of the evidential criterion of the “gross weight”, importance must be attributed only to gross quantities, not minimal, but such as to make it logically deductible (even with the approximation given by the necessary recourse to the prognostic criterion) the possibility of obtaining quantities of main active ingredient of the narcotic substance certainly superior to the presumptive threshold indicated in the Decree of the 11th April, 2006.
However, it should be observed that the introduction of the reference parameter based on the gross weight of the substance and, a fortiori, also the introduction of the parameter based on main active ingredient of the substance (v. supra), beyond the immediate utility for the police operator, present an unquestionable practical advantage. As a matter of fact, they are able to contribute to provoking a fall in demand by indirectly forcing the consumer to acquire smaller quantities than he/she has been used to doing – in order to avoid the risk of the criminal sanction.

The criterion based on “the modalities of presentation [of the substance], having regard … to the fractioned packaging” is much more useful. There is no doubt about the evidential importance and the help, above all, for the immediate determinations of the Police, since said fractioning of the substance affords good foundation to suspect that it is destined to be sold retail on the illicit market
Anyway, it is one of the criteria that, traditionally, until now, the Law has utilized for the demonstration of the illicit destination of the drug.

With regard to the “other circumstances of the action”, they include all the “objective” circumstances different from those expressly codified (quantity of main active ingredient, gross weight, dividing-up of the substance) suitable to logically support the destination of the substance to a ‘not exclusively personal use’. For example, the custodial modality of the drug; the space-time modality in which the seizure of the drug was carried out; the finding of considerable quantities of “cutting” substances, etc., (18) . The usefulness of such circumstances with an end to the reconstruction of the destination of the drug is so evident that any further specific comments are superfluous.
Instead, it should be pointed out here, that the circumstances of the possession of narcotic substances of different kinds, which not infrequently, is utilized as a demonstrative element of the destination to trafficking (arguing on the believed fact of common experience that the drug addicted person, (like the toxicophile) normally use only one type of narcotic) (19), is, in reality, equivocal and cannot always be utilized in its absoluteness. In fact, in the case of possession of substances of different kinds, one is in the presence of an element which (only together with the others) can effectively support the probative reasoning of the destination to the illicit market; while, ex se considered, and that is, by itself, it is not sufficient to this end, being logically compatible also with a destination to exclusively personal use, since it is usual for the drug addicted person,with the passage of time, to pass from less dangerous substances to the harder drugs, owing to the effect of the addiction (20) . In such perspective, the attribution of importance to the fact of the different kinds of the substances must pass through an analysis of the overall circumstances of the case, with particular importance given to the quantities of same.

As already mentioned, the exhaustiveness of the circumstantial evidence criteria must be excluded, to admit the importance only of those expressly listed in the regulations.
On the contrary, a more attentive reflection allows us to recognize importance also to the criteria of a subjective nature, based on the quality of the transgressor (drug addicted or not) and on the conditions of income of same (compatibility or not of the conditions of income with the purchase to satisfy an exclusively personal use).
This conclusion, more amply treated supra, is imposed by the principle of freedom of judgement and of that of the absence of legal evidence which characterizes the criminal matter.
Indeed, precisely such subjective criteria, if perfectly understood, can dissolve any possible interpretive doubts and lead to a sure judgement on the finality of the conduct (ergo, on the destination of the narcotic substance).


“Group usage”

To complete the picture of the sanctioning regulations system, it remains to make certain considerations on the so-called “group usage” of narcotic substances.

In fact, before the novum regulations of 2006, a question of extreme interpretive interest, especially after the outcome of the Referendum of the 18th and 19th April, 1993, was constituted by the sanctioning treatment reserved for the so-called “group usage” of narcotic substance, with particular regard to the hypothesis wherein a subject proceeds to the purchase and subsequent handover of the substance for “group usage” together with the third party mandants, who previously entrust the task of purchase.
As one remembers, to form a significant interpretive contrast [over which it is, frankly, useless to linger], the united Sections intervened with a well-known sentence (21), where, facing the controversial question of the sanctioning treatment reserved for the member of the group who undertakes the commission to materially purchase the drug designed for shared use, the Court adhered to the favourable orientation to consider the fact as mere administrative importance. According to the united Sections, in essence, it must be considered an administrative offence of which Art. 75 of the DPR, No. 309/790, and not the crime provided for in Art.73 of the same DPR, not only in the case of “concomitant purchase” of narcotic substance for personal use by all the members of a group, but also in the case where only certain components of the group had proceeded to the purchase of the substance on behalf (on “commission”) of the others and then had proceeded to the material sub-division of same.
In extreme synthesis, for the united Sections, also in the hypothesis of “commission to purchase”, the fact must be considered only administratively relevant, having to apply – to the buyers in name and on behalf of the other members of the group – the civil law discipline of the “commission” and the relative effects with regard to the purchase and to the availability of the substance (Art. 1388 and 1706 of the Civil Code): all the members of the group, unequivocally, from the beginning, precisely by reason of the assigned “commission”, would purchase the availability pro quota of the substance, with the effect that the subsequent dividing-out for shared use must be considered not criminally significant.

The question of the sanctioning treatment of the “group usage” of narcotic substances seems, however, definitively resolved following the novum.
It follows, in essence, the overturning of the jurisprudential orientation expressed by the united Sections (and then constantly followed by the jurisprudence (22)) which, in fact, wanted to confine the “group usage” to an exclusively administrative ambit.
In fact, in sufficiently clear terms, drawn from the incriminatory regulations, is the recognized criminal importance of the personal use which is not exclusively “personal”: the Legislator having taken a totally negative position with regard to the ‘only administrative importance’ of the conduct generally connected to “group usage”.
With which, for the future, the criminal importance must be applied not only to “group usage” qualified by the assignment, explicit or implicit, by the group members of the “commission to purchase” the drug
only to one or to more than one of the group members, but also to “collective group usage” qualified by the collective purchase of the drug by all the group members for shared usage. In the one as in the other case, in fact, the use would not be exclusively “personal” and, therefore, would be of criminal importance.
A confirmation of such unequivocal interpretation option is obtained also from the disposition of the “new” Art. 75, para 1, of the DPR, No. 309/90, where the administrative fact, however much interesting, is constructed excluding the hypotheses “of Art. 73, para 1 bis”, therefore, also the hypotheses of possession which demonstrates to be destined to a “not exclusively personal use”.
The choice merits absolute agreement where one considers that the “group usage”, at least, when it is characterized in the form of the so-called “commission to purchase” constitutes a potentially dangerous diffusion of narcotic substances: to be frank, it deals with the conduct “procuring for others”, expressly provided for and criminally sanctioned in Art. 73, para 1, of the CPR, No. 309/90
A conduct which is, in no way, less dangerous than the others sanctioned by the same Art. 73, where one considers that also it finishes with carrying out an illicit diffusion (to third parties) of the narcotic substance, if for no other reason than if there were no-one to assume the commission of procuring the drug, the other members of the group could not obtain the availability and /or, in any case, to satisfy their own personal need, they would have to organize in a different way (accepting, for example, the risk of purchasing in person).
The position taken by the Legislator of 2006 is, in all probability, excessively severe with regard to “group usage” characterized by the collective purchase of the drug on the part of the users. It is, in fact, a conduct which does not realize an undue diffusion of the narcotic substance by who materially purchases the drug to who limits himself only to use it, inasmuch as all the subjects proceed jointly to the operation.
In addition, the literal formulation of the regulations, with the unequivocal reference to the criminal importance of whatever use “not exclusively personal” does not allow corrective interpretations
such as to permit a solely administrative importance of the personal use not merely individual, but in collective form. Rather, such situation, can be considered, for its evident minor gravity, in the recurrence of the conditions of law, for the possible applicability of the extenuating circumstance of the “fact of minor entity”, referred to in Art. 73, para 5, of the DPR, No. 309/90.


Concluding considerations

With reference to the above considerations regarding the functionality of the new sanctioning system of narcotics, I find encouragement in the operative experience. In fact, even with the partial reserves mentioned above (principally, with regard to the immediate, satisfactory usefulness of – or of some of – the parameters for the activities of the Investigative Police), one can certainly say that the first jurisprudential applications appear sufficiently univocal on the significance of such parameters and, most of all, that, thanks to the circumstantial evidence parameters, not only are unreasonable disparities of judgement avoided between the evaluations of the Investigative Police and the considerations of the Judge, but a major operative certainty is attributed to an extremely delicate material: a certainty which permits the better pursuit of the “drug dealer”, without letting the mere user, surprised in the possession of narcotic substances, finish in the criminal circuit.
While the reserves on the equalization standards of the prohibited narcotic substances, (but supra it is seen how such standards are not, in fact, absolute, but rather, allow to distinguish between the different prohibited substances) find an answer in the importance that it is always an equalization standard that concerns the treatment of illicit conduct as “destined to a not exclusively personal use”.