Criminal Liability in the Sale of Narcotic Substances: Commentary on the Supreme Court Ruling

The recent ruling no. 16930 by the Court of Cassation, issued on April 20, 2023, offers significant food for thought on criminal liability in cases of drug trafficking and the consequences arising from such conduct. The Court ruled on a case of overdose that led to the death of a user, raising crucial questions regarding the subjective element of the crime and the culpability of the seller.

The Specific Case and the Appealed Judgment

In the case at hand, A.A. was convicted for selling heroin to B.B., who died from an overdose. The Court of Appeal of Ancona upheld the conviction, arguing that A.A. had not ascertained the health condition of the user, who was already undergoing methadone treatment. However, the Court of Cassation overturned the judgment due to flaws in the reasoning regarding the subjective element, highlighting the need to prove the seller's awareness of the potential lethality of the substance sold.

Ultimately, according to the Constitutional Court, there is no room in our legal system for a third form of culpable liability, distinct from intentional or negligent liability.

Elements of Liability and Negligence

The ruling reiterates that, for the seller to be held culpable for the user's death, a concrete causal link must emerge between their conduct and the fatal event. The Court emphasized that negligence must be assessed concretely and not abstractly, taking into account factors such as:

• Knowledge of the user's health condition.
• The purity of the substance sold.
• The behavior of a model agent in the same situation.

In this specific case, the Court highlighted the lack of evidence regarding A.A.'s awareness of the heroin's purity and B.B.'s clinical situation, which are fundamental elements for attributing criminal liability.

Conclusions and Legal Implications

This ruling by the Court of Cassation underscores the importance of a careful analysis of the context in which drug trafficking occurs. Criminal liability cannot be automatically assumed in the event of tragic outcomes like overdoses; instead, it requires a thorough assessment of the seller's conduct and their mental state at the time of the sale. The Court therefore ordered a retrial so that the elements of negligence and the defendant's awareness could be examined more deeply. The importance of this principle is crucial to ensure that justice is administered fairly and in accordance with the principles of criminal law.