Drug Possession: The Court of Cassation (Judgment no. 21859/2025) and Acquittal for Lack of Proof

The Supreme Court of Cassation, with Judgment no. 21859, filed on 10/06/2025, has provided a crucial clarification on illicit drug possession and acquittal formulas. This ruling, authored by Dr. C. S. and involving Mr. R. G. as the defendant, is an important reference for criminal law.

Proof of Third-Party Distribution: A Key Element

The case led to the annulment of a judgment by the Court of Appeal of Palermo. The Court of Cassation reiterated: drug possession is illicit (art. 73 Presidential Decree 309/90) only if intended for dealing or distribution to third parties. Mere possession for personal use does not constitute a crime. The distinction rests on 'third-party distribution,' a requirement that the prosecution must prove unequivocally.

Maximum Ruling and Acquittal Formulas Compared

The judgment distinguishes between 'because the fact does not exist' and 'because the fact is not provided for by law as a crime'.

In matters of narcotics, an acquittal must be pronounced with the formula "because the fact does not exist" in cases where, in proceedings for the crime of illicit possession, there is a lack of proof of third-party distribution, even for part of the substance in the agent's possession. The formula "because the fact is not provided for by law as a crime" refers to the different case where any criminalizing norm to which the contested fact can be attributed is lacking.

The Court states that 'because the fact does not exist' (art. 530, paragraph 1, c.p.p.) is appropriate when proof of a constituent element of the crime, such as 'third-party distribution,' is missing. It is not an unpunished action, but an action that does not constitute the criminal offense. 'Because the fact is not provided for by law as a crime' applies when the contested action finds no correspondence in a criminalizing norm. The stringent burden of proof on the prosecution is reiterated.

Typical Indicia of Dealing

To distinguish between possession for dealing and for personal use, judges assess specific indicia. The absence of these elements leads to acquittal. Among the factors considered are:

• Quantity and quality of the substance, if exceeding personal use limits.
• Tools for packaging or cutting (scales, cellophane).
• Subdivision into doses ready for distribution.
• Possession of large sums of money, deemed illicit proceeds.
• Telephone contacts or other investigative elements indicating dealing negotiations.

In the absence of concrete and unequivocal evidence, it is not possible to convict for the crime of possession for dealing, imposing a rigorous burden of proof on the prosecution.

Conclusions: Guarantees and Burden of Proof

Judgment no. 21859/2025 follows a line of jurisprudence attentive to individual guarantees and the 'favor rei' principle. It reiterates that it is incumbent upon the prosecution to prove every constituent element of the crime, including third-party distribution. The absence of such proof must lead to an acquittal, safeguarding the defendant's liberty. This ruling serves as a reminder of the importance of meticulous evidence analysis and the correct application of procedural formulas for justice.