“For the Italian Supreme Court seizing light hemp inflorescences is unlawful”
Criminal Supreme Court, dep. VI, Judgement no. 4920, January 31, 2019
It is now known that light hemp’s business is significantly increasing and that it is attracting a huge number of investors, even from abroad.
However, as anticipated in our previous article, entitled “Light cannabis in Italy: products are booming in Italy, but recreational consumption is still illegal”, Law of December 2nd 242/2016 does not expressly provide light hemp inflorescences’ sale, which can be used also for recreational purpose. This lack of regulation has caused lots of doubts and misinterpretations, that might affect the growth of this business in Italy.
But, in this regard, an important step forward has been taken thanks to the judgement of the Italian Criminal Supreme Court, that had to decide, in fact, on the lawfulness of selling light hemp inflorescences (so with a percentage of THC between 0,2% up to a maximum of 0,6%, according to the current legislation).
With its revolutionary judgement, no. 4920 published on January 31, 2019, the Court has stated that the lawfulness of light hemp cultivation pursuant to Law no. 242/2016 determines automatically the legitimacy of selling its products (inflorescences included) with a THC percentage from 0,2% (or less) up to a maximum of 0,6%, standing that with this percentage of THC they cannot be classified as drugs as per Presidential Decree no. 309/1990, concerning the regulation of drugs and psychotropic substances, prevention, treatment and rehabilitation of its states of addiction.
Consequently, if the retailer proves the lawful origin of light hemp inflorescences, the competent authority can order a precautionary seizure, only if the information provided by the retailer can be reasonably doubted and only if there is the well-founded suspicion that the crime of illegal production, commercialization and detention, as provided by article 73 of the Presidential Decree no. 309/1990, has been committed.
The order of the Court of Review of Macerata
The case originates from the decision of the Court of review (Tribunale del Riesame) of Macerata that has rejected the request of review brought against a preventive seizure issued on light hemp inflorescences.
In this case, the products seized on a precautionary basis pursuant to article 321 of the Italian criminal procedure code, had a content of THC between 0,52% and 0,65%, therefore they had an average level lower than 0,6%, in accordance with the current legislation.
Notwithstanding the above, the Court of Macerata stated that there were evidence and signs of the commission of the crime under article 73, paragraph 4, of Presidential Decree no. 309/1990, which provides the illegal production, selling and detention of drugs and psychotropic substances.
Moreover, the Court affirmed that, even though Law no. 242/2016 is a special law, regulating light hemp cultivation and production, it cannot derogate from the general provisions of Presidential Decree no. 309/1990, because it refers solely to the farmers and it does not regulate the commercialization of light hemp inflorescences for recreational purpose, but only the cultivation and production of those seeds admitted by the European Union pursuant to article 17 of the Directive 2005/53/CE, which are not included in the Presidential Decree no. 309/1990.
Appeal brought against the order of the Court of Review of Macerata
The claimant appealed the order of the Court of Macerata with three grounds of appeal, that can be summarized as follows:
First ground of appeal
With the first ground of appeal the claimant maintained that the order was inconsistent because the Court (i) has wrongly established that Law no. 242/2016 cannot derogate from the general provisions of Presidential decree no. 309/1990 concerning drugs and psychotropic substances, even though it is a special law regulating, specifically, the production and cultivation of light hemp; (ii) has wrongly stated that selling light hemp inflorescences is illegal, because the Law in question does not expressly provide this kind of business. The claimant, instead, pointed out that if the THC level of these products does not exceed the 0,6% as provided by law, consequently and automatically selling these products shall be legal as well, even though selling light hemp inflorescences is not expressly provided. In this regard, it should be also considered that the ministerial circular no. 70/2018 has included light hemp inflorescences in the floriculture section, making in this way legal their commercialization.
Second ground of appeal
With the second ground of appeal the claimant alleged a failure to state reason with regard to the unlawfulness of selling light hemp inflorescences, irrefutably affirmed by the Court of Macerata.
According to the claimant, in fact, the Court did not explain sufficiently on which legal basis selling light hemp inflorescences should be considered illegal.
Third ground of appeal
With the third ground of appeal the claimant alleged the wrong interpretation and application made by the Court of article 4, paragraphs 5 and 7, of the 2016 Law also in relation to article 73, paragraph 4 of the Presidential Decree no. 309/1990 and a lack of motivation even in this regard.
Just for sake of clarity, it should be specified that article 4, paragraph 5, of Law no. 242/2016 provides that if, after having checked the cultivation, it emerges that the THC level is higher than the 0,2%, but still within the 0,6%, there is no liability upon the farmers, whilst, according to paragraph 7, the judicial authority can decide for its seizure and destruction only if, after having checked it according to the detailed provisions of paragraph 3, the THC level exceeds the 0,6%. Anyways, even in this case there is no liability upon the farmers.
Standing all the above, the claimant affirmed that, as clearly understandable by reading the above-mentioned articles, if the seeds cultivated are those certified and admitted by law there is no criminal liability upon the sellers (as for the farmers) even though the percentage of THC contained in the products exceeds the maximum tolerance. The claimant, moreover, underlined that in that specific case the seeds cultivated had not been genetically tested.
The judgement of the Supreme Court
Before stating on the specific case brought to its attention, the Supreme Court has briefly described and analyzed the Italian legal framework on this matter, focusing, more particularly, on the Law of December 2nd 242/2016
It started explaining that the main purposes for which the aforementioned law has been issued were to regulate and promote national farmers growing light hemp with minute levels of a psychoactive compound and, as clarified in the report attached to the draft law, to avoid that the farmers were subjected to controls (expensive criminal trials, confiscation, or destruction, or anyways crop losses) carried out in contrast to the European legislation.
At article one, paragraph 2, in fact, it is provided that Law no. 242/20016 refers only to those types of hemp plants periodically listed by the European Commission, pursuant to article 17 of the directive 2002/53/CE, to which Presidential Decree no. 309/1990, concerning the regulation of drugs and psychotropic substances, is not applied.
It is the law itself, in fact, that expressly establishes that cultivating light hemp, in accordance with the existing legislation, is not a crime pursuant to article 73 of Presidential Decree no. 309/1990 and that, for this reason, no authorization is required to start the cultivation. It provides instead that (i) the farmers shall keep the certification of the cultivated seeds for at least 12 months and the related purchase invoice; (ii) the authority in charge of checking if the cultivation is compliant with the current legal framework shall carry out controls according to the European regulation and the national implementation legislation (see at article 4, paragraph 6,Law no. 242/2016); (iii) the cultivation of hemp shall have THC percentage from 0,2% (or less) up to a maximum of 0,6%.
According to the current legislation, in fact, if the THC level of the cultivation exceeds the 0,6%, the government’s funds are suspended and the crop can be confiscated or destructed, but, as understandable by reading the article 4, paragraph 7, even in this case, there is no liability upon the farmers.
After having described the current Italian legal framework, the Court has focused on the issue of light hemp inflorescences’ sale, explaining that, even though it is not expressly mentioned, however, it cannot be considered in contrast with the main purposes of improving and promoting hemp’s cultivation, as provided by articles 2 and 3.
Therefore, the lack of any reference to the inflorescences’ sale, does not imply automatically its prohibition.
Even more so, if it is considered that circular no. 70 issued by the Ministry of Agriculture on May 22, 2018 has included light hemp inflorescences in the floriculture section, making in this way legal their commercialization.
Standing all the above, the Supreme Court, adhering to judgments of other ordinary Courts (e.g. Court of Ancona, July 27, 2018; Court of Rieti, July 26, 2918; Court of Macerata, July 11, 2018; Court of Asti, July 4, 2018) and to the interpretation given by the doctrine, confirmed that from the lawfulness of light hemp cultivation pursuant to Law no. 242/2016 derives automatically the legitimacy of its products commercialization (inflorescences included) with a THC percentage from 0,2% (or less) up to a maximum of 0,6%, for which Presidential Decree no. 309/1990 cannot find application.
By establishing the limit of 0,6% of THC the Legislator has already defined the right balance between the possible consequences deriving from selling light hemp inflorescences and public order, therefore selling light hemp inflorescences cannot be forbidden, unless otherwise provided by other legal measures.
In this regard, neither the Presidential Decree no. 309/1990 nor other primary byelaw issued after Law no. 242/2016 establish that selling products (inflorescences included) made from light hemp it is illegal. Therefore, the principle according to which “selling a product that does not have an inherent illegal feature, it shall be allowed under the general right of people to act (so called agere licere) in order to satisfy their interest (so called facultas agendi)” shall find application.
Finally, and in conclusion, the Supreme Court has stated that, if it is not contested that the inflorescences seized have been obtained from legal crops according to Law no. 242/2016, no criminal liability can be recognized upon the sellers – as for the farmers – when the products (inflorescences included) are seized or destroyed because the percentage of THC exceeds the 0,6% and, in this case, only an administrative seizure can be carried out according to article 4, paragraph 7, Law no. 242/2016. A criminal liability can be recognized only if the seller was aware or has modified the level of THC before selling the products (inflorescences included).
This decision undoubtedly represents another important piece in the jigsaw to make the provisions of December 2nd 242/2016 clearer and to avoid misinterpretations that can affect this business in Italy.
Law no. 242/2016, at article 2 provides that from the cultivation of light hemp it is possible to obtain a certain type of products and activities (such as food, fabrics, biofuel, clothing and construction material) among which the cultivation aimed to floriculture is included