Commentary on Judgment Cass. pen., Sec. III, no. 6218 of 2018: Reflections on Drug Offenses and Aiding and Abetting

Judgment no. 6218 of 2018 by the Supreme Court of Cassation offers significant food for thought regarding the offenses provided for by Presidential Decree no. 309 of 1990 and the application of grounds for non-punishability. In particular, the Court examined the positions of G.L. and Ga.Ra.Ma.Fr., involved in offenses related to narcotics and aiding and abetting, respectively. The decision highlights the importance of adapting penalties to new legislative provisions and jurisprudential interpretations.

G.L.'s Case and the Re-definition of the Penalty

G.L. was convicted for the crime under art. 73, paragraph 5, of Presidential Decree no. 309/1990, an offense that, following legislative amendments, saw its legal nature transform into an autonomous offense. This change led to new, more favorable statutory limits, with a minimum of six months and a maximum of four years of imprisonment. However, the Court of Appeal of Messina did not proceed with a re-determination of the penalty, thus violating the principle of the lex mitior, which requires the application of the more favorable criminal treatment in case of regulatory change.

• The defendant's right to be judged according to the more favorable law, as established by art. 2 of the Criminal Code, paragraph 4.
• The need to re-evaluate sanctioning measures in light of the principles of equality and proportionality.
• The duty to adequately justify the imposed penalty, especially in the absence of aggravating circumstances.

The rehabilitative purpose of the penalty requires an in-depth assessment of regulatory changes and mitigating circumstances.

Ga.Ra.Ma.Fr.'s Case and the Concept of Family

Regarding Ga.Ra.Ma.Fr., the central issue was the application of the ground for non-punishability provided for by art. 384 of the Criminal Code for aiding and abetting. The Court recognized that the notion of family has expanded to include de facto unions, in line with social evolution and the rulings of the European Court of Human Rights. The Emonet judgment of 2007 established that the notion of family is not limited to marriage but includes stable de facto relationships.

This legal aspect is fundamental, as it recognizes the value of informal affective relationships, a principle that has been further reiterated by Italian jurisprudence. The Court therefore annulled the judgment of the Court of Appeal, holding that the possibility of applying the ground for non-punishability for Ga.Ra.Ma.Fr. had not been adequately considered.

Conclusions

Judgment Cass. pen., Sec. III, no. 6218 of 2018 marks an important step in Italian jurisprudence regarding drug offenses and aiding and abetting. It underscores the importance of correct and updated application of criminal law, particularly in an ever-evolving legal context. With the annulment of the appealed judgment and the referral to the Court of Appeal of Reggio Calabria, the path is opened for a new assessment of penalties based on the most recent legal principles and social developments that influence the concept of family.