The formalism of jurists, and of judges in particular, reserves a new surprise every day, mostly an unpleasant one. The latest of these is that if a young man ( or a mature man at that), buys or brings with him from a trip to Holland, or receives as a gift from a friend, a small amount of hashish to smoke in private, he does not commit a crime ( though he incurs a civil sanction). However, if he obtains that same substance by a “ do it yourself” method, that is to say, cultivating it himself in his garden or on the balcony, he must be punished by going to prison the same as a cocaine trafficker. This is stipulated by law, article 73 of the consolidated act 309/1990 ( and successive modifications in 2004) which enumerates, rather grotesquely given the results it leads to, “production and illegal trafficking of psychotropic or narcotic substances”. Unfortunately this is not a joke but the outcome of the combined intervention of a cruel and distracted legislator ( who takes no care to dictate clear and rational norms ) and of a magistrate body uninterested in the consequences underlying the decisions, considered nothing more than a game of ability.
The terms of the problem are simple. The legislator, in identifying, in article 75 of the consolidated act, the exceptions to criminal prosecution for possession of narcotic drugs, makes reference to the conducts of “ importation ”, “ acquisition ”, or “ detention ” of narcotic substances for personal use. Amongst the behaviours indicated, there is no expressed mention of “ cultivation “, and thus a legal battle has opened between the supreme judges of the High Court (Corte di Cassazione). The prevailing interpretation of judges, based on a literal reading of the norm and perhaps motivated by fear of unspeakable abuses, is that the cultivation of plants from which narcotic substances can be derived lies within article 73 of the anti drug law (309), and that it is irrelevant that the cultivation is for personal use ( thus the sentencing on 17 October 2006, Quaquero and others, by the fourth penal section and the sixth penal section in the sentencing on 15 February 2007, Casciano ). With a dose of common sense and juridical acumen a panel of the sixth section, called to deliberate a case where a person was condemned for the cultivation of five marijuana plants, changed direction and affirmed an issue as obvious as it is coherent with the system. Quoting from the sentence: “ The cultivation of plants from which narcotic substances can be extracted (by which it is intended not cultivation in an agrarian-technological sense but “domestic cultivation”), falls under the notion of “detention”. As such, it needs to be verified if the crop is destined for exclusively personal use by the cultivator (as in the case at hand)“ ( sentence 18 January 2007, Notaro ).
This wise decision caused a “legal conflict “ and has provoked the crucial intervention of the highest legal body, the joint session of the High Court (Corte di Cassazione). Thus, last April, the verdict arrived: wisdom and good sense were archived and it was reconfirmed that keeping on one’s balcony a pot of just one damned cannabis plant is a criminal behaviour and merits punishment in jail….
We are now awaiting the reasoning behind the sentence, but meanwhile we need to begin to think. The political climate and the present juridical formalism do not promise anything good in the short term and not in the intermediate future either. However by exchanging views and intelligent ideas, even the law can change. It has happened before.
Articolo di Redazione
An Op Ed by Livio Pepino, magistrate
