Il problema della rilevanza penale della coltivazione di piante da stupefacenti tra offensività e ragionevolezza

Abstract

The problem of criminal relevance of cultivation of narcotic plants can be considered an interesting opportunity to evaluate the interaction, on the interpretative level, related to the principles of harmfulness and reasonableness, understood as balancing criterion between opposite values. The author examines two jurisprudential interpretative ways to exclude the punishability for small “domestic” cultivations of narcotic plants. The first attempt was to contest the constitutional legitimacy of Article 75 of the d.P.R. 309/1990, because it doesn’t include, as an administrative offence, minimal cultivations for the purpose of personal consumption. The second attempt was to exclude any punitive measures because of the absence of confirmed harmfulness of individual cases of small cultivations. After a synthetic report about jurisprudential evolution on this topic, the author critically analyzes the sentence Cass. S.u. 19 dicembre 2019 n. 12348, which excluded the criminal relevance of small “domestic” cultivation, planted in a rudimentary way, with very few plants able to produce a very modest quantity of narcotic substance.