Drug Cultivation Crime - International Lawyers Associates

Drug Cultivation Crime

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Pending the presentation of the reasons, we recognize the solution prepared by the Supreme Court of Cassation for the United Sections to a matter of great legal, as well as social, interest in relation to the criminal relevance of the conduct of cultivation of narcotic substances .
Pending the presentation of the reasons, we recognize the solution prepared by the Supreme Court of Cassation for the United Sections to a matter of great legal, as well as social, interest in relation to the criminal relevance of the conduct of cultivation of narcotic substances .

The Supreme Consensus was expressed with the following principle of law «The crime of drug cultivation» can be configured independently of the amount of active ingredient that can be obtained immediately, the conformity of the plant with the expected botanical type and its aptitude is enough.

Also for cultivation methods, to reach maturity and produce amazing substance; however, since they are not attributable to the scope of the criminal law, small-scale cultivation activities carried out domestically should be considered excluded, which by the rudimentary techniques used, the small number of plants, the very small amount of obtainable product, the lack of new indicators of its inclusion in the drug market seems to be destined exclusively for the personal use of the producer «.

The conduct of narcotics cultivation, sanctioned by art 73 DPR 309/90, is the subject of a long-standing debate, as evidenced by the frequent interventions of the Law of legitimacy and constitutional.

It should be noted that two different orientations have been extended.

The first, more rigorous, believes that the offensive of cultivation behavior derives from its suitability to produce the substance for consumption. Therefore, for the purpose of punishment, it does not detect the amount of active ingredient that can be obtained immediately, but rather the conformity with the intended botanical type and its ability (also for cultivation methods) to produce a surprising substance.

In other words, the judge of first instance will not have to determine, in the case that is presented to him, the amount of active ingredient that can be obtained in that specific state of cultivation, but simply to verify the botanical type and its aptitude to produce a surprising substance for consumption, residing in this only the offensive. Therefore, it is considered that the crime is of presumed danger and anticipated consumption.

Any positive result of these investigations will legitimize the judge to issue a conviction.

However, according to other guidelines, it is necessary not only that the conduct be abstractly offensive (the crop creates new drug availability and increases the relative market), but also in concrete terms, at least to a minimum extent.

It follows that the judge of first instance must perform a double verification: on the one hand, to determine whether the plant in question belongs to the botanical type indicated by law and, if it is mature, that it has reached the minimum doping threshold; On the other hand, you will also have to determine if the behavior is really offensive.

According to supporters of the latter and more guaranteed orientation, the judge must acquit the accused in case the substance is intended exclusively for personal use, given the minimum extent of cultivation, as to exclude the possible propagation of the substance and, consequently , the expansion of the crop (in this sense Cass. Pen. Section VI February 26, 2016, no. 8058) has been expressed.

As noted in the past, art. 73 of Presidential Decree 309/90 aims to protect "public health, security and public order through the fight against drug circulation."

These products will not be damaged by small-scale cultivation practices, simply aimed at personal consumption and not suitable for determining the circulation of the drug.

The judge of first instance, who faces a case of cultivation, will have to evaluate the specific offensive nature of the conduct and, taking the invitation made by the Constitutional Court with sentence no. 109/2016, you must defend the defendant by taking advantage of the figure of the impossible crime (art. 49 of the criminal code), or recognizing a defect in the typical nature of the behavior subject to trial.

The principle of law expressed by the United Sections of Cassation, with provisional information made on 19.12.2019, seems to share the need for an accurate analysis of the specific case, identifying a series of symptomatic indices of the fate of the plants for purely personal use, that, as it stands out, has no criminal relevance in accordance with art. 73 Presidential Decree 309/90.

The exclusive use to which the narcotic substance is directed can be deduced from a series of elements tested during the process: the use of rudimentary cultivation techniques, the "scarce" number of plants, the "very modest" amount of incredible substance. In a negative sense, it is also required that there are no indices capable of demonstrating the insertion in the drug market.

At present, it is not yet possible to know what are the details of the case that originated the established principle, nor is it possible to define in advance exactly what should be understood, in numerical terms, for a small number of plants and a very small amount of surprising substance. However, it is likely that, in the absence of a precise regulatory definition, these parameters are still subject to discretionary assessment by the individual judge.

However, it is appropriate to evaluate the provisional information of the United Sections in a positive sense, which could guide future jurisprudence to a case study analysis of the criminal relevance of cultivation practices, in accordance with the general principle of offensive.

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Good article regarding drug cultivation.
  • Carmen Chavales
5

Summary

At present, it is not yet possible to know what are the details of the case that originated the established principle, nor is it possible to define in advance exactly what should be understood, in numerical terms, for a small number of plants and a very small amount of surprising substance. However, it is likely that, in the absence of a precise regulatory definition, these parameters are still subject to discretionary assessment by the individual judge.

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