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The Italian Constitutional Court’s Decision on Article 73 of DPR 309/90

The Court of Appeals in Trieste has recently raised constitutional legitimacy issues regarding Article 73, paragraph 1, of DPR 309/90, which establishes penalties for drug-related offenses. This decision is based on alleged contradictions with the Italian Constitution (Articles 3, 25, and 27) due to the minimum statutory penalty of eight years set forth by this provision. This penalty replaced a previous six-year sentence, which had been declared unconstitutional in 2014.

The Issues Raised

Initially, the Court of Appeals raised the issue of a violation of the principle of legal reserve in criminal matters, asserting that interventions to increase sanctions should be the exclusive prerogative of the legislator. The Court argued that the penalty modification stemming from the 2014 constitutional ruling is unconstitutional because it was imposed by the Court itself.

Furthermore, the Court emphasized the unreasonable difference in penalties between “heavy” and “light” drug offenses and highlighted how this disparity is in contrast with the principle of equality (Article 3 of the Constitution). Such differences in sanctioning were considered disproportionate and inconsistent with the principle of rehabilitation of penalties (Article 27 of the Constitution).

The Decision of the Constitutional Court

The Constitutional Court declared the initially raised issue inadmissible, stating that decisions of the Constitutional Court are not subject to appeal. However, it considered the questions regarding the unreasonableness and disproportionality of penalties admissible and well-founded.

The Constitutional Court concluded that the minimum penalty of eight years for drug-related offenses is unconstitutional, establishing that an appropriate penalty should be six years of imprisonment. It argued that this six-year penalty had been repeatedly indicated by the legislator as an adequate measure for “borderline” offenses in the so-called “gray area” between serious and minor drug-related crimes.

This decision by the Constitutional Court has significant implications for the Italian judicial system and penalties related to drug offenses. The penalty modification aims to ensure greater fairness and proportionality for those who commit such offenses.