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Italy: Constitutional Court Issues Decision on Illicit Trafficking and Possession of Drugs or Psychotropic Substances

(Apr. 15, 2019) On March 13, 2019, the Italian Constitutional Court issued a decision on the production, trafficking, and illicit possession of narcotic and psychotropic substances, declaring part of article 73(1) of Presidential Decree No. 309 of 1990 (D.P.R. No. 309) unconstitutional in that it set the minimum sentence for such crimes at eight years of imprisonment instead of six. (Decision No. 40 of January 23, 2019, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE, G.U.] Mar. 8, 2019 (in Italian), G.U. website.)

Background of the Case

The Constitutional Court reviewed a constitutional question raised by the Appellate Court of Trieste concerning article 73(1) of D.P.R. No. 309. (Decree of the President of the Republic No. 309 of October 9, 1990 (Consolidated Text of Laws on Narcotic and Psychotropic Substances, and the Prevention of, Cure of and Rehabilitation from Drug Addiction  (in Italian), G.U. website.)

Article 73(1) provided for an eight- to twenty-year sentence for conviction of a person who unlawfully

cultivates, produces, manufactures, extracts, refines, sells, offers or puts up for sale, cedes or receives, for any reason, distributes, trades, purchases, transports, exports, imports, procures for others, sends, passes or ships in transit, delivers for any purpose or otherwise illicitly holds [specified] narcotic or psychotropic substances . . . . (Id. art. 73(1) (translation by author).)

Constitutional Question Posited

The Constitutional Court reviewed the constitutionality of article 73(1) of D.P.R. No. 309 in light of the following articles of the Constitution:

  • Article 3, which guarantees all citizens equal social dignity and equality before the law, and mandates that the state remove all obstacles that constrain the freedom and equality of citizens.
  • Article 25, which provides that removal of a case from a court, or the imposition of punishments, or restrictions against personal freedom may be imposed only according to the law.
  • Article 27, which establishes that criminal responsibility is personal, states the presumption of innocence, and prohibits inhuman punishments and the death penalty. (COSTITUZIONE DELLA REPUBBLICA ITALIANA, Dec. 1947, as amended through 2012, Italian Senate website; CONSTITUTION OF THE ITALIAN REPUBLIC, Comparative Constitutions Project website.)

The Appellate Court of Trieste requested that the Constitutional Court review article 73(1), noting that a previous Constitutional Court decision (Decision No. 32 of 2014) had declared unconstitutional a similar minimum prison sentence for narcotics offenses, namely that established by article 4-bis of Decree-Law No. 272 of December 30, 2005. (Decree-Law No. 272 of December 30, 2005, Urgent Measures to Guarantee the Safety and Financing of the Next Winter Olympics, as well as the Functioning of the Administration of the Interior. Provisions to Promote the Recovery of Repeat Offenders, G.U. Dec. 30, 2005 (in Italian), G.U. website.)

In the case at hand, the defendant was apprehended with about 100 grams of cocaine contained in a package from overseas. (Decision, considerations of fact 1, para. 1.) The Appellate Court of Trieste acknowledged the defendant’s argument that the leeway established by article 73(5) of D.P.R. No. 309 for the sentencing of lesser drug offenses (lieve entita)—that is, from six months to four years of incarceration—when compared with the punishment for potentially closely analogous offenses covered by article 73(1), created levels of discretion in sentencing so discontinuous that it raised constitutional issues. (Id. considerations of fact 4.2, para. 1.)  The defendant argued that the length of the imprisonment penalty violated the principle of proportionality, the principle of guilt, and necessary re-educative goal of the sentence, as established in articles 3 and 27 of the Constitution, respectively. (Id. considerations of fact 4.3, para. 1.) As a result, the defendant requested that the Constitutional Court reduce the minimum sentence from eight to six years of imprisonment. (Id. considerations of fact 4.4.)

Reasoning of the Court

In its opinion, the Constitutional Court highlighted its constitutional duty to guarantee that the internal criminal punishment system respond to the logic desired by the legislature, avoiding the areas beyond its constitutional control and ensuring an effective protection of fundamental rights. (Id. considerations of law 4.2, para. 4.)

The Court noted that the breadth of the discretion created by the relevant provisions of D.P.R. No. 309 required a complex evaluation by courts of first instance to assess the nature of crimes before them. (Id. considerations of law 5.2, para. 2.)

The Court noted that the legislature had repeatedly singled out the penalty of six years as an adequate measure concerning the outer limits of the punitive system for crimes related to drug trafficking. (Id. considerations of law 5.3, para. 4.)

The Court decided it was appropriate to accept the request to reduce to six years of imprisonment the minimum punishment for crimes under article 73(1) of minor character. (Id. considerations of law 5.3, para. 5.)

Holding of the Court

The Constitutional Court declared that part of article 73(1) of D.P.R. No. 309 unconstitutional that provides for a minimum imprisonment sentence of eight instead of six years. (Id. considerations of law, para. 1.)