By Fuori Luogo

“The crime of drug cultivation can be defined regardless of the quantity of active compound that could be obtained immediately, being sufficient the conformity of the plant to the botanical type as legally allowed and its capacity to reach maturity and produce narcotic substances, also in relation with the cultivation methods. However the small-scale cultivation carried out at home should to be considered out of the scope (excluded from the application) of the criminal law, as far as it appears to be intended exclusively for personal use, due to the rudimentary techniques used, the small number of plants, the modest quantity of product obtainable, the lack of any further indicator of any collusion with the illegal drug market.”

This is the recent rule issued by the Italian Supreme Court (Corte di Cassazione). The question brought to the attention of the court was whether was sufficient, to configure the cultivation crime, that a cannabis plant was able, given its ripening growth, to produce narcotic substance for consumption, even if in quantity not immediately detectable, or if it was necessary to verify that the cultivation was actually suited to harm public health and to further promote drug circulation in the black market.

The Supreme Court seems to have supported (the court’s complete reasoning will be published in the next weeks) the second option but excluding the criminal punishment for plants exclusively aimed at personal use, based on their quantity and basic cultivation procedures. While administrative sanctions provided for consumption of narcotic drugs can still to applied according to current drug law (art. 75 of Presidential Decree 309/1990), cultivation for personal use should not automatically defined as a trafficking crime and therefore liable to a sentence from 2 to 6 years of imprisonment (even if it was often considered as minor crime sentenced from 6 months to 4 years). The Supreme Court therefore confirms a common judgment widely used in Italian lower courts: defendants were acquitted when it was obvious or proven by their defense that the cultivation was intended exclusively for personal use.