Pubdate: Sat, 28 Dec 2019
Source: New York Times (NY)
Copyright: 2019 The New York Times Company
Author: Anna Momigliano


ROME - Growing small amounts of marijuana at home for private use is
not a crime, Italy's top court has ruled, putting an end to a
years-long legal dispute and adding Italy to the short list of
countries to allow cultivation of recreational cannabis.

A 1990s law prohibits the cultivation and sale of marijuana in Italy,
but conflicting court decisions, and a 2016 amendment that opened a
loophole in the law, created confusion over how it should be

The country's highest court appears to have settled at least part of
the question, writing in a one-page statement of its findings that "at
home, small-scale cultivation activities are to be considered excluded
from the application of the penal code."

The judges produced the document on Dec. 19 and it was first
publicized on Thursday by the news agency AGI. A full, detailed ruling
remains weeks or months away, so the court's complete reasoning has
not been made public.

Among the unanswered questions is how much cannabis qualifies as
"small-scale cultivation," but the ruling stemmed from a case in which
the defendant had two plants.

The court appears to have stopped short of outright legalizing
marijuana, but has decriminalized small-scale, private cultivation,
meaning that while it might still be technically illegal, it is not
treated as a serious crime and carries only light penalties.

"It's a very important decision, because it will shield from prison
those who choose to cultivate marijuana for personal use," said
Leonardo Fiorentini, a representative of the drug policy advocacy
group Forum Droghe.

Only a handful of countries have, to varying degrees, legalized
possession or cultivation of small amounts of cannabis for
recreational use, most of them recently. Lawmakers in Uruguay voted in
2013 to remove the prohibition, and the law went into full effect in

In 2018, Canada's Parliament legalized marijuana, and the Supreme
Courts of both Mexico and South Africa struck down their bans. In
Spain, a law has been in place for decades that allows small-scale,
private growing and use of the drug, but the number of people taking
advantage of it has grown rapidly in the past decade.

A few other countries have decriminalized limited possession,
cultivation or both. They include the Netherlands, Belgium,
Luxembourg, the Czech Republic, Colombia and Chile. Still others allow
marijuana for medical use, including Italy, where the army has a
monopoly on commercial growing and a marijuana greenhouse in Florence.

In 2013, a court in Torre Annunziata, a small town in southern Italy,
sentenced a man, identified in court records only as CG, to one year
in prison and a fine of 3,000 euros for growing two cannabis plants at
home. He appealed the decision, first to a higher court in Naples and
eventually to Italy's Corte Suprema di Cassazione, the supreme court.

Unlike its American counterpart, Italy's supreme court is divided into
multiple sections for different areas of law, and they had come to
differing conclusions about small-scale cultivation of marijuana.

The confusion stemmed partly from disagreement about how to apply the
broader ban on cultivation to growing for private use, and how to
apply a 2016 amendment that allowed people to grow and sell "light
cannabis," with low levels of THC, the psychoactive ingredient.

As a result, Pietro Faraguna, a constitutional law professor at the
University of Trieste, said that Italian courts - including the
supreme court itself - have struggled to put the laws into practice.

Given the contradictory rulings, in August the court asked for a
ruling by its own highest authority, the Sezioni Unite, or joint
sections - in effect, the supreme court of the supreme court.

The Sezioni Unite ruled that the "rudimentary techniques" and "the
small amount produced" in small-scale home growing makes it irrelevant
to the illegal drug trade that the criminal law is intended to address.

Now the court "has clearly said cultivating cannabis alone is not
enough," to be a crime, Mr. Faraguna said, setting a binding precedent.

But Mr. Fiorentini said the ruling illustrated the failure of Italy's
lawmakers, because they should make clear what their statutes mean,
rather than asking judges to cut through the confusion.

"Courts are bailing out politics, because politics is indecisive on
the issue," he said.
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