Analysis of Judgment No. 23759 of 2023: Possession and Trafficking of Narcotic Substances

Judgment No. 23759 of February 10, 2023, published on May 31, 2023, offers an important reflection on drug-related offenses, emphasizing the distinction between the conduct of possession and trafficking. In particular, the Court of Cassation clarified how, under certain circumstances, these conducts may lose their legal individuality, excluding formal concurrence.

The Case Examined

In this case, the defendant M. E. K. was accused of possession and subsequent trafficking of narcotic substances. The Court of Appeal of Florence, in a judgment of March 25, 2022, had recognized the plurality of conducts, but the Court of Cassation, quashing without referral, ruled that the charged conducts should be considered as a single action, excluding the configuration of formal concurrence.

Plurality of conducts – Possession and trafficking – Formal or apparent concurrence – Conditions – Factual circumstances. In the context of drug-related offenses, the different conducts provided for by art. 73 of Presidential Decree of October 9, 1990, No. 309, lose their individuality, with the consequent exclusion of formal concurrence due to absorption, if they constitute a manifestation of disposition of the same substance and are carried out concurrently or, in any case, without appreciable continuity, in order to achieve a single purpose. (Factual circumstances relating to the possession and subsequent trafficking of the same narcotic substance, in which, despite the identity of the material object of structurally heterogeneous conducts, apparent concurrence was excluded on the grounds of the lack of temporal contiguity between the initial conduct of possession and the subsequent trafficking).

Legal Implications

This judgment underscores a fundamental principle in criminal law: the absorption of conducts. When dealing with drug-related offenses, if the conducts of possession and trafficking are carried out without a break in continuity, the possibility of configuring formal concurrence is nullified. This means that the penalties provided for individual conducts cannot be added together, but a single penalty will be applied for the overall action.

• Principle of continuity: the conducts must be temporally close.
• Absorption: the conducts cancel each other out if carried out for a single purpose.
• Importance of evidence: lack of temporal contiguity can exclude apparent concurrence.

Conclusions

Judgment No. 23759 of 2023 represents an important clarification of jurisprudence on narcotic substances. It highlights how the conducts of possession and trafficking, when carried out in a context of continuity, must be considered as a single factual circumstance, thus excluding formal concurrence. This approach not only simplifies the legal assessment of conducts but also represents a protection for defendants, reducing the possibility of increased penalties. In a complex legal context such as that of drug offenses, this judgment offers food for thought and an important point of reference for future similar cases.