We talk:

Write on WhatsApp

+39 335 705 9564

ICAAOU | Coltivazione domestica marijuana

Cannabis at Home: When Does Cultivation Become Legal?

In the Italian legal landscape, the issue of domestic marijuana cultivation has been redefined thanks to the intervention of the Joint Sections of the Court of Cassation. What emerges from this decision is that domestic marijuana cultivation is no longer considered a crime in Italy. This means that anyone, whether an individual, a relative, or a friend, who is investigated or facing a criminal proceeding for cultivating a small quantity of marijuana for personal use, now has the opportunity to defend themselves in court and demonstrate that the conduct does not constitute a crime.

When Can We Talk About Domestic Marijuana Cultivation?

According to the Joint Sections of the Court of Cassation, there are several key elements that indicate the existence of domestic marijuana cultivation:

  1. The cultivation must be of small scale, suggesting that the quantity of narcotics produced is intended for personal use and not for sale.
  2. The production of the substance must occur through rudimentary techniques, as professional cultivation is a strong indication of production for purposes other than strictly personal.
  3. It involves a limited number of cultivated plants, taking into account the quantity of narcotics that can be obtained from them.
  4. The quantity of narcotics obtainable from the cultivation must be modest.
  5. There must be no other indicators suggesting involvement in the narcotics market.

The Court of Cassation has left some discretion to the Judicial Authority in evaluating these elements, avoiding the establishment of strict criteria for the number of plants or the quantity of narcotics to qualify a conduct as domestic marijuana cultivation.

Is Domestic Marijuana Cultivation a Crime in Italy?

No, and this is the crucial point of the decision of the Joint Sections of the Court of Cassation. The fundamental starting point for fully understanding this decision is that personal use of narcotics, regulated by Article 75 of Legislative Decree 309/90, is not considered a crime in Italy but rather an administrative offense.

However, domestic marijuana cultivation cannot be equated with personal use of narcotics. Unlike Article 73 of Legislative Decree 309/90, Article 75 does not mention cultivation for personal use as a punishable conduct, focusing instead on the import, export, purchase, or possession of narcotics. Therefore, domestic marijuana cultivation is not considered a crime in Italy.

Difference Between Domestic Marijuana Cultivation and Possession of Narcotics for Personal Use

Although these concepts are often considered interchangeable, there is a significant difference between domestic marijuana cultivation and possession of narcotics for personal use.

Domestic marijuana cultivation is not considered a crime, so the administrative sanctions provided for personal use of narcotics under Article 75 of Legislative Decree 309/90 are not automatically applied.

However, if a significant quantity of narcotics is derived from domestic marijuana cultivation, the sanctions of Article 75 of Legislative Decree 309/90 for possession of narcotics for personal use may be applied.

When Domestic Cultivation Exceeds Limits

If marijuana cultivation exceeds the limits to be considered domestic but still produces limited quantities of narcotics, a careful assessment of the specific circumstances is required.

In such a case, the role of a lawyer experienced in narcotics matters becomes crucial. The lawyer can seek to apply the grounds for excluding liability provided for in Article 131 bis of the Penal Code in cases of particular insignificance of the offense. This article allows for the exclusion of liability for offenses with a maximum custodial sentence of up to five years or a fine when the offense is of particular insignificance, and the behavior is not habitual.

Furthermore, even in the case of narcotics cultivation exceeding domestic limits but not attributable to a more serious offense, the autonomous offense provided for in paragraph 5 of Article 73 of Legislative Decree 309/90 may be applied, which prescribes milder penalties for minor offenses related to narcotics.

Why Consult an Attorney Experienced in Domestic Marijuana Cultivation?

The possession of narcotics is a highly complex legal field subject to constant changes. Consulting a lawyer with specific experience in domestic marijuana cultivation is essential to promptly address any criminal proceedings.

The boundaries between criminally relevant and non-relevant cultivation are blurred, and a lawyer specialized in narcotics matters can provide competent guidance. It is advisable to rely on a lawyer experienced in domestic marijuana cultivation who fully understands the legal matter and can develop the best defense strategy for the specific case from the outset.