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

Judgment no. 6218 of 2018 by the Supreme Court of Cassation offers significant food for thought regarding the offences 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 drug-related offences and aiding and abetting, respectively. The decision highlights the importance of adjusting penalties to new legislative provisions and case law interpretations.

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

G.L. was convicted of the crime under art. 73, paragraph 5, of Presidential Decree no. 309/1990, an offence which, following legislative amendments, has seen its legal nature transform into an autonomous title. This change has led to new, more favourable statutory limits, with a minimum of six months and a maximum of four years' imprisonment. However, the Court of Appeal of Messina failed to re-determine the penalty, thus violating the principle of lex mitior, which requires the application of the more favourable criminal treatment in the event of a regulatory change.

• The defendant's right to be judged according to the more favourable 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 punishment requires a thorough 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 recognised that the notion of family has expanded to include de facto unions, in line with social evolution and rulings by 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 recognises the value of informal affective relationships, a principle that has been further reiterated by Italian case law. 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., Section III, no. 6218 of 2018 marks an important step in Italian case law concerning drug offences and aiding and abetting. It underscores the importance of a correct and up-to-date application of criminal law, particularly in a constantly evolving legal context. With the annulment of the appealed judgment and the referral to the Court of Appeal of Reggio Calabria, the way is opened for a new evaluation of penalties based on the most recent legal principles and social developments influencing the concept of family.