The defendant is appealing against the sentence of the Court of Appeal of Naples which, in the referral, after the Supreme Court had annulled the previous appeal decision due to lack of notification to his defense counsel, partially reversed the sentence of the Court of North Naples, redeveloping pursuant to art. 73, paragraph 5, dPR 309 of 1990, the crime of cannabis cultivation, aggravated by repeated recidivism.
Among the various grievances, the man denounces a violation of the law and a lack of reasoning regarding the configurability of the crime of illicit cultivation. According to him, the Court had not considered that it was cannabis sativa and also had not taken into account the diffusive potential of the cultivation, disregarding the principles of domestic cultivation, as it was a single seedling, another m. 1.60, planted in the courtyard of the house, in the absence of instruments and special precautions or connections with the drug market, the destination for personal use being objectively inferable. Nor in the opposite sense could he have deposed the discovery of two lawn mowers, constituting tools that serve the purpose of self-consumption.
For the Cassation the reason is well founded and takes on absorbing importance.
First of all, the judges stated that, “on the complex issue of the classification of the cultivation activity and on the relationship between this activity and the destination for personal use of the narcotic substance obtained, a significant ruling by the United Sections has taken place (cf. no. 12348/2019), which constitutes a decisive parameter of evaluation. The United Sections placed the profile of typicality at the center of the analysis, excluding that the mere subjective destination for personal use could be considered decisive and instead giving prominence to the objective-structural profile, correlated to the coexistence of multiple elements, which must converge in the sense of the exclusion of the crime”.
In particular, “the predictability of potential productivity has been valued as a parameter which makes it possible to distinguish between criminally relevant cultivation, endowed with a productivity that cannot be estimated a priori with a sufficient degree of precision, and criminally irrelevant cultivation, characterized by a predictable productivity as very modest”.
However, it was underlined, the judges added, “that this parameter, in order to operate with sufficient certainty, must be anchored to objective presuppositions – in part already identified by the jurisprudence – which must all be present together, such as: the minimum size of the cultivation, the its development in a domestic form and not in an industrial form, the rudimentary nature of the techniques used, the small number of plants, the lack of indications of an insertion of the activity in the context of the drug market, the objective destination of what is produced exclusive personal use of the grower, being on the other hand insufficient the circumstance that the cultivation is undertaken with the subjective intention of satisfying personal consumption needs”.
In the present case, in the light of these principles, the elements, although evaluated jointly, for the Cassation, therefore, “do not converge in the sense of traceability to the hypothesis of typical cultivation, criminally relevant, in the opposite sense deposing, according to what is sharedly underlined from the defence, the absence of indices which allow us to hypothesize a concrete connection with the drug market, against an objective destination for personal use, the rudimentary nature of the cultivation activity, resulting in the planting of a single seedling, with a limited sphere of productivity, not such as to make margins of unpredictability concretely feasible and to go beyond the sphere of that objective destination, in itself not contradicted by the active principle in progress obtainable from that seedling”.
Nor, finally, “is it possible to understand how the discovery of two grinders can be classified differently”.
Consequently, the contested sentence must be annulled without referral, because the fact does not exist.
(StudioCataldi.it from 03/24/2023)
the association does not receives and is against public funding (also 5 per thousand)
Its economic strength are inscriptions and contributions donated by those who deem it useful
DONATE NOW