Criminal Cassation No. 11494/2025: Article 74 DPR 309/1990 and the Armed Association Aggravating Circumstance, No Constitutional Flaw

The Criminal Cassation Court, Section VI, with its decision of February 18, 2025 (filed March 21, 2025), has once again addressed the issue of the constitutional compatibility of the sanctioning treatment provided for leaders and promoters of drug trafficking associations in the presence of the armed association aggravating circumstance. Judgment No. 11494/2025, partially annulling with referral the ruling of the Court of Appeal of Rome, offers insights of great interest for lawyers and operators in the sector, especially in view of future challenges to unconstitutionality.

The Core of the Decision

The issue raised by the defense of D. S. concerned Article 74, paragraphs 1 and 4, of DPR 309/1990, in the part that sets the minimum penalty of 24 years of imprisonment for leaders or promoters when the association is armed. According to the defense's argument, this provision violates Articles 3 and 27 of the Constitution, introducing an excessively rigid and disproportionate penalty. The Supreme Court, referring to its most significant precedents (Cass. Nos. 11526/2022 and 5560/2020), rejected the exception, deeming it manifestly unfounded.

The question of the constitutionality of Article 74, paragraphs 1 and 4, of Presidential Decree No. 309 of October 9, 1990, for conflict with Articles 3 and 27 of the Constitution, in the part where, with reference to the conduct of the leader or promoter of an association aimed at drug trafficking aggravated by the availability of weapons, it provides for a minimum penalty of twenty-four years of imprisonment, is manifestly unfounded, as, without determining a fixed penalty, the provision only conditions the possible range of variation of the statutory limits of the sanction, and its effects, in concrete terms, can be eliminated by the balancing judgment of the aforementioned aggravating circumstance with one or more mitigating circumstances.

Translated into less technical terms, the Court states that the legislator has not imposed an immutable penalty, but has simply raised the minimum threshold within a range that remains manageable by the judge. The actual severity can be reduced through balancing with any mitigating circumstances, thus safeguarding the principle of proportionality of the penalty.

Relationship with Constitutional and Legitimate Jurisprudence

The Cassation's reasoning aligns with a consolidated orientation of the Constitutional Court, according to which the legislator's choice to graduate penalties falls within the "broad discretion" recognized to it, provided it does not result in manifest unreasonableness. On this point, the Court implicitly refers to judgment No. 40/2019 of the Constitutional Court, which upheld the increased penalties for mafia crimes with similar reasoning.

• There is no "fixed" penalty: the judge retains a margin for sentencing.
• The balancing between aggravating and mitigating circumstances constitutes a constitutionally adequate instrument of flexibility.
• Equal treatment (Article 3 of the Constitution) is guaranteed through uniform measurement criteria.

The judgment therefore offers another piece to the body of jurisprudence that values the principle of individualization of punishment even in the presence of high statutory limits.

Practical Implications for the Defense

For those assisting individuals accused under Article 74 of DPR 309/1990 with aggravating circumstances, the ruling presents at least three strategic implications:

• Challenges to the constitutionality of the increased minimum penalty appear, at present, destined for a negative outcome.
• It is crucial to focus on mitigating circumstances (collaboration, minimal participation, reparative conduct) in order to concretely reduce the penalty.
• Adequate reasoning on the balancing becomes fertile ground for potential appeals to the Cassation Court.

Conclusions

The Cassation Court, with judgment No. 11494/2025, reiterates that the armed association aggravating circumstance in drug trafficking does not violate constitutional principles, provided that the judge correctly exercises the power of balancing. The decision closes (at least for now) the door to unconstitutionality challenges, shifting the focus of defense strategies to the valorization of mitigating circumstances and the quality of judicial reasoning. For criminal law practitioners, it remains essential to monitor future rulings of the Constitutional Court, where the issue is still "pending," but also to refine the procedural tools available to ensure penalties that are truly proportionate to the specific case.