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Italy: Constitutional Decision Upholding Decriminalization of Soft Drugs

(June 9, 2014) On May 29, 2014, the Criminal Chamber of Italy’s Supreme Court (Corte Suprema di Cassazione), upheld a Constitutional Court decision on the reduction of penalties for convictions for the sale of soft drugs. (Novità legislative: legge 28 aprile 2014, n. 67 contenente “Deleghe al Governo in materia di pene detentive non carcerarie e di riforma del sistema sanzionatorio. Disposizioni in materia di sospensione del procedimento con messa alla prova e nei confronti degli irreperibili,” Supreme Court website (May 5, 2014).) The penalties had been applied under Decree-Law No. 272 of 2005 and its amendments until February 12, 2014. On that date, Italy’s Constitutional Court had declared the partial unconstitutionality of that Decree-Law. (Corte Costituzionale della Reppublica Italiana, Ultimo Deposito delle Pronunce (May 30, 2014), Constitutional Court website [conduct search by date]; Dante Figueroa, Italy: Legislation on Narcotics and Psychotropic Substances Found Partially Unconstitutional, GLOBAL LEGAL MONITOR (Mar. 27, 2014).)

The Supreme Court Decision clarifies the implications of the Constitutional Court’s February 2014 judgment. (Droga, la Corte Costituzionale boccia la legge Fini-Giovanardi: Incostituzionale, IL FATTO QUOTIDIANO (Feb. 12, 2014); Novità legislative: legge 28 aprile 2014, n. 67, supra.) As a consequence of the Supreme Court Decision, the Iervolino Vassalli Law, which excluded prison sentences against persons convicted for trafficking in “soft” narcotics, enters into full effect. (Legge Iervolino Vassalli, Legge n. 162 del 1990, DIZIONARIO DEL CITTADINO (May 30, 2014); Legge Iervolino Vassalli, Legge 26 giugno 1990, n. 162, NORMATTIVA.)

The Supreme Court was called upon to issue a general ruling clarifying the interpretation of the legislation on narcotics and psychotropic substances. In particular, it was to decide whether a declaration of unconstitutionality of a law other than that under which a person was convicted, but which affects the penalty, requires a re-determination of the penalty during the sentencing phase. That is, it had to rule on whether the declaration of that a law that is illegitimate under the Constitution also overturns prior definitive convictions handed down under the previously valid law. The Court ruled in the affirmative. (Piccolo spaccio, fuori a migliaia, AVVENIRE.IT (May 29, 2014).)

The re-determination of penalties ordered by the decision also applies in cases of recidivism, when the mitigating circumstance of “mild character of the facts” was considered in the original sentencing. (Id.) As a result of the Decision, four to five thousand persons already serving sentences for crimes related to soft drugs may be eligible to leave prison. (Piccolo spaccio, fuori a migliaia, supra.)