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CHAPTER 3. Italy: plebiscite on drug possession, anti-mafia laws against supply PDF Print E-mail
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Books - European Drug Laws
Written by Maria Luisa Cesoni   


The Italian regulation of narcotics and psychotropic substances (henceforth drugs) has been regularly amended during the two last decades. The provisions concerning the illicit traffic of such substances have not changed substantially but with the evolution of international law, have simply become stricter. In order to fight drug trafficking and, more generally, criminal organisations, provisions on precursor control and money laundering prevention have been adopted or modified according to international regulations.

With regard to consumption, Italian law is based on the principle of non-criminalisation of the use of narcotics or of their possession for personal use. However, there have been numerous modifications. Under the law of 1923 and according to the penal code of 1930, only behaviour posing a risk to third parties was punishable. Law No. 1041 of April 22, 1954 punished the possession of narcoties, regardless of their destination. However, court practice was not uniform: according to certain magistrates, consumption was not punishable, whereas for others it was. The Supreme Court of Appeal (Corte di cassazione) sanctioned the latter interpretation.'

The alarming spread in the use of narcotics at the beginning of the 1970s gave rise to the question of whether or not such a behaviour, which was increasingly becoming defined as a disease, warranted criminalisation. Law No. 685 of December 22, 1975 settled the question, providing that neither the use nor the possession of limited quantities of drugs for personal use was punishable.

In 1990, following the adoption of the 1988 Vienna Convention (henceforth UN 1988), but more specifically as a result of domestic considerations, a new law (No. 162 of June 26, 1990), was adopted. Pursuant to that law drug use was prohibited, but it was not a punishable offence. On the other hand, the possession of a "daily amount" for personal use was subject to administrative sanctions, violation of which was subject to penal sanctions. However, these provisions fell far short of achieving the desired unanimity. In a 1993 popular referendum the electorate rejected both the definition of use as illicit and any criminalisation of possession for personal use, irrespective of the quantity of the substances.

The Italian situation demonstrates the considerable room for manoeuvre that exists around consumption and its preparatory acts. As far as drug trafficking and its associated offences are concerned, the more limited room for manoeuvre permitted by international and European law has been cancelled out by the political tendency to follow international trends.


B.1.    Drug use
B.1.1. Measures on drug use per se (a)    Legal Measures

The main legislation in respect of drug use is the Unified Act on Drugs Matters of 1990' (henceforth TULS), which also regulates possession and supply. As a result of the popular referendum of April 18, 1993, TULS was substantially amended by a presidential decree (June 5, 1993 No. 171). A new law (July 14, 1993 No. 222) facilitated the conversion of a prison sentence to treatment.

TULS refers to six lists of controlled substances established in accordance with the international conventions (Articles 13, 14 TULS). Only substances in List I, II, III and IV are considered as illegal, except when used for medical or scientific purposes. List I and III concern "hard drugs" (such as opium, cocaine, LSD); List II and IV concern "soft drugs" (such as cannabis). Illicit activities related to the fo.rmer are subject to stricter punishment than those related to the latter. List V and VI concern medical preparations and psychotropic substances that are merely controlled on an administrative level and can be sold to individuals on medical prescription only.

It should be noted that in Italy drug use per se has never been criminalized.

The assertion of prohibition of the non-therapeutic personal use of drugs introduced by law No. 162/1990 was repealed by the popular referendum of April 18, 1993. In fact it was only an affirmation of principle, since violations had not been punished.

Nowadays, the 1990 law only mentions drug use in relation to its medical use and prevention and treatment activities. The penal code (henceforth PC) considers drug (or alcohol) consumption as mitigating or aggravating circumstances according to the case. Under Article 93 PC two provisions concerning alcohol apply to drug users: Article 91 PC excludes or diminishes the responsibility of the accused when the involuntary consumption of drugs interferes with someone's capacity to understand the significance of their actions, conversely Article 92 PC increases the responsibility of someone who takes drugs for the purpose of committing an offence or escaping liability. Under Article 94 PC the commission of an offence under the influence of drugs (or alcohol) by a habitual user is considered an aggravating factor.

However, pursuant to Articles 88, 89 and 95 PC, chronic intoxication due to drugs (and alcohol) is treated in the same manner as mental illness: non-imputability or diminished responsibility is retained. To my knowledge, in practice, these articles have not been applied very often but they may have been applied in particularly serious offences. The Supreme Court of Appeal has admitted that the limit between the two situations is difficult to define without recourse to medical science.' Moreover, the Court holds that one must only resort to a psychiatric expert when there is solid circumstantial evidence suggesting that a mental illness derived from the use of the narcotics.'

Indeed, the Court generally considered that there was not necessarily a correlation between drug addiction and chronic intoxication due to drugs under Article 95 PC. The latter exists only when drug abuse has produced a permanent pathological state that has diminished the intellectual capacities and will of the accused and, consequently, has decreased or excluded his imputability [responsibility, liability].4

Law No 685/75 (Article 100) made it possible for the civil judicial authorities to impose treatment on drug users. To my knowledge, this provision was not applied in practice. It was not reproduced in the new law. Currently, restriction of the rights of the users is only possible in rare circumstances.

Only minors or individuals under public guardianship who use narcotic drugs may be subjected to compulsory treatment at the request of their families or guardians (Article 120 TULS).

However, the penal code provides that persons who are a danger to society, who consume or who are addicted to drugs may be hospitalised as an interim safety precaution during investigation or a trial (Article 206 PC).

Medical examination for the purpose of detecting drug addiction is compulsory if the individuals concerned are employed in certain occupations that may constitute a hazard to others. If such an employee is found to be dependent on drugs, the employer is bound to assign him to other duties (Article 125 TULS). A compulsory medical examination in order to ascertain the offence of driving under the influence of narcotics is allowed under the highway code (see B.1.5 below).

Finally, a civil protective measure may also be imposed. Article 415 of the civil code stipulates that individuals who, by reason of their habitual abuse of drugs, subject their families to grave financial risk, may be placed under public guardianship.

Some rights and benefits are attributed to drug users or addicts because of their condition.

The law (Article 120 TULS) grants drug users the right to follow a therapeutic programme and to maintain their anonymity. Of particular note is the right to keep one's job — if the employment contract is for an indefinite period — during the period (to a maximum of three years) in which the drug-dependent person is undergoing treatment. The members of his family may enjoy the same right (Article 124 TULS).

The mandatory prosecution system in force in Italy (Article 112 Const.) does not permit proceedings to be stayed when a drug user accepts treatment. However, the possibility of a "therapeutic alternative" to imprisonment has been introduced — implicitly since 1982 and explicitly since 19855— for dependent drug users who have been charged with or convicted for dealing in drugs or for any other offence. It is specifically contemplated in the following instances. Preventive detention in prison is not allowed (except in especially significant cases where protection is essential — esigenze cautelari) when a person is undergoing therapeutic treatment that may fail if it is interrupted. Similarly, a detention order will be revoked if the detainee decides to undergo treatment. The court may issue a fresh detention order if the individual refuses treatment or interrupts it. The alternative to imprisonment is not possible for persons charged with certain severe offences' (Article 89 TULS).
When the penalty of imprisonment (or the term still to be served) does not exceed four years and the individual concerned is following a course of treatment, or decides to follow one, then imposition of the sentence may be deferred by the court responsible for enforcement to enable therapeutic treatment which is in progress or due to start to be carried out. This measure may only take place once, but sentences may be combined up to the four-year limit (Article 90 TULS). If the treatment is completed without incident, the offence is expunged (estinto) (Article 93 TULS), and then the penalty may also be discharged through a probation order (affidamento in prova al servizio sociale). This may only be done twice (Article 94 TULS).

(b)    Intensity of Measures

No sanction or restriction of rights are involved. The obligatory treatment that-'can be ordered for minors corresponds to the normal exercise of parental authority, as regulated by the civil code (Article 316).
The right to treatment has largely been respected ever since its introduction, which preceded law No 162/1990. A network of public services (SERT) was set up and significant funds were allocated to specialized private organisations. The number of users in treatment rose steadily from 25,223 in 1984 to 76,885 in 1992.
As for the alternatives to imprisonment, in 1992, out of 14,800 inmates who were drug users, approximately, 1,284 (8.6%) were allowed probation or a state of "domiciliary arrest" (Bion, 1993a).

(c)    Judicial/administrative Procedures Followed

The suspension of the penalty stipulated by Articles 90 and 94 TULS is applied by a court competent for the enforcement of the penalties (tribunale di sorveglianza). The convicted person has the right to be heard and must be legally represented. The decision is subject to appeal to the Supreme Court. Code PF.ii. However, the procedure is not open to the public.

(d)    Passage of law

The introductory report8to the law proposal of 1990 declared that the law of 1975 was in violation of the Single Convention of 1961 (henceforth UN 1961) as well as of UN 1988, since it did not explicitly prohibit the use and possession of drugs. The reason for the reference to the UN conventions appears above all to have been to support the domestic objectives of the law proposal, which related to the management of social alarm due to the diffusion of micro-criminality associated with use. The parliamentary debate related primarily to consumption and to its preparatory acts. There were two opposing camps. Some considered that the criminalisation of trafficking as well as consumption would limit the availability of drugs and that, in addition, drug addicts inevitably took part in trafficking networks. Others underlined the inefficiency of the sanctions, penal as well as administrative, with regard to drug addicts, declaring that the illusion of curing by means of penal repression was a sign of impotence with regard to the phenomenon.' The final compromise was found by declaring consumption to be illegal but without punishing it: a "juridically useless provision (...) but of obvious ideological importance", according to the literature.'° The Constitutional Court" has underlined the point that the main rationale of the new law and of the more severe treatment of possession was to combat the illicit trade.

(e)    International/EU Compliance

International conventions on drugs do not prescribe the criminalisation of drug use, thus Italian law does not violate any international regulation. Regarding the "therapeutic alternative" to imprisonment granted to accused or convicted drug users, UN 1988 permits the replacement of conviction or penal sanction of a drug addict by treatment in cases of possession for personal use and petty offences (Articles 3.4 (c) and 3.4 (d)). Italian law is in line with these provisions.

B.1.2. Use in a group, gifts/exchanges of drugs

Drug use is not punished, regardless of the manner in which it takes place: in private or in public, alone or in a group. Gifts and free exchanges of drugs fall under the category of possession for personal use (cf. B.2.1 below).

B.1.3. Aggravated circumstances of drug use

Aggravating circumstances cannot make drug use per se sanctionable in Italian law.

To my knowledge, the problems of private-public use and nuisance (not intended as illicit activities) linked to drug use did not represent a factor in the adoption of the current law.

B.1.4. Incitement to use drugs
(a) Legal Measures

Article 82 TULS punishes the incitement to use drugs in public as well as in private. An aggravating circumstance is when the incited person is a minor or when the activity is carried on close to or inside a school, prison, hospital or medical-social centre.
Making public premises, private clubs, premises or vehicles available for drug use is punished (Article79 TULS). When users are minors this is an aggravating circumstance.
The advertising of all controlled substances is prohibited (Article 84 TULS).

(b)    Intensity of Measures

For incitement in relation to hard drugs: imprisonment from one to six years and a fine (2-10 million Lit.). For soft drugs the penalty is reduced by one-third to a half. Aggravated offences: ordinary aggravation of the sanction (Articles 61-69 PC) leads to a doubling of the sanction if the crime concerns persons under 14 years old.
The basic penalty represents 25% (NIM code) of the maximum prison (basic) penalty for the most high sanction offences in Italian law, which attract 24 years' (Article 23 PC).
Regarding premises, etc, for hard drugs the imprisonment is from 3 to 10 years and a fine (5-20 million Lit.); for soft drugs, from one to four years and a fine (5 to 50 million Lit.). NIM code: 42% (hard drugs); 17% (soft drugs).
Aggravated offences: the penalty is increased by a third to a half. If there is a conviction for making premises used by the public available for the use of drugs, their closure will be ordered by the court for a period of two to five years.

Article 85 TULS prescribes ancillary penalties. Convictions under Articles 82 and 79 TULS can be combined with a prohibition on travel abroad and a driving ban for a period of up to three years (Article 85 TULS). Any foreigners considered dangerous are deported (the Constitutional Court" declared their automatic deportation under special laws to be unconstitutional, since this violates the principle of equality in comparison with those who are the object of a deportation order issued under the penal code). In the case of Article 82, however, this is possible only when there are aggravating circumstances (Article 86 TULS).
For advertising drugs, there is an administrative fine (10 to 50 million Lit.)
The code of all these sanctions is EIM.iii.

(c)    Judicial/administrative Procedures Followed

Incitement and premises offences.

All the penal actions under the TULS follow the normal provisions of the code of criminal procedure (henceforth CPC). They are subject to the right to an independent hearing, to an appeal to both the court and the Supreme Court. All normal guarantees established by the Constitution and the law apply: the principles of legality (Article 25 Const.), of imputability (the capacity to understand the significance of the act and to have committed it voluntarily — Article 25 Const.) of proportionality (Article 133 PC) and of the "natural judge" (Article 25 Const.); the presumption of innocence (Article 27 Const.), the right to a defence (Article 24 Const.) and the right to a period for its preparation (Articles 429, 519 CPC), the obligation to give reasons for jurisdictional decisions (Article 111 Const.), the right to silence (Article 64 CPC), the right to be informed of the existence of an investigation (Article 350 CPC) and of the nature of the cause and charge (Article 65 CPC), the right to an interpreter (Article 143 CPC), the right to ask for the admission of exculpatory evidence (Article 190, 495 CPC), and the prohibition of methods which may influence witnesses (Article 188 CPC).

In terms of the comparative codes used in this study, criminal procedures correspond to level PF.iv, since they are subject to higher guarantees than those envisaged by Article 6 European Convention on Human Rights (henceforth ECHR). The ancillary penalties stipulated in Articles 85 and 86 TULS are imposed by the judge. They are thus imposed within the framework of the ordinary criminal procedure.

Law No. 689 ofNovember 24, 198114 (Articles 1, 2, 3, 11) sets down the principles governing the application of administrative penalties,' these being very close to the principles of criminal law: especially the principles of legality, imputability, proportionality and individual responsibility (everyone is responsible for his or her own actions).

Rossi Vannini considers that the majority of the constitutional guarantees relating to penal matters must also be regarded as applicable to administrative sanctions, but regrets that the right to profit from legal representation is not stipulated:6 The,procedure regulated by law No 689/81 for the enforcement of administrative sanctions respects the principle of contradiction: the notification of the infringement (Article 14), the time permitted for the submission of defence documents and the right to be heard (Article 18). According to Sandulli (1983, p. 192-195) the principle whereby jurisdictional decisions must be justified should be extended to administrative decisions that apply a sanction, in order to enforce the principle of "due administrative process", which the legal scholar and jurisprudence consider as stipulated by Article 97 Const. The Council of State also affirms this obligation. However, it is limited to the reasons justifying the decisions and not to the elements in fact which founded it." The decision is subject to opposition (Article 22), in which case a jurisdictional procedure is opened before the ordinary judicial authority. The decision of the judge is subject to appeal to the Supreme Court (Article 23).

According to Rossi Vannini (1990, p. 221-225), the decisions of the European Court of Human Rights suggest that Articles 6 and 6.1 ECHR are applicable to procedures concerning administrative sanctions (code PF.ii). Indeed, according to the Court, Article 6.1 ECHR applies to any curtailment of rights, including those curtailed by an administrative decision. It applies "to the disputes between an individual and a public authority when the latter interfere with the exercise of preexisting private rights"." It could apply to disciplinary sanctions that impinge on civil rights.' However, the range of guarantees is broader. Arts. 6.2, 6.3 and 7 ECHR apply to penal matters. The Oztiirk judgment" compares administrative infringements that involve the application of punitive measures with penal matters, including administrative fines. The simultaneous preventive and repressive nature of administrative sanctions makes them comparable to penal sanctions in terms of the applicability of ECHR standards. The Court admits that disputes about civil rights are not all subjected to jurisdictional procedure, but that administrative authorities can intervene immediately. In such situations it recommends submitting these decisions to jurisdictional evaluation (see Cohen-Jonathan, 1989, p. 407).
The procedure prescribed for the application of administrative sanctions in Italy is balanced on the border between the two components of Article 6 ECHR: it entirely respects Article 6.1 when one considers both the procedure of application of the sanctions and the jurisdictional recourse which can be implemented by the interested party. The judicial procedure that follows should be subjected to all the guarantees stipulated by Articles 6.2, 3 and 7 ECHR, but some gaps remain.

(d)    Passage of law

The rationale of Articles 82 and 84 TULS is to combat the spread of drugs by limiting the activities that support it indirectly, including cultural activities. The legal good protected by these provisions is first public health, and then law and order (restricting drug trafficking by reducing consumption). To my knowledge, the adoption of these norms did not give rise to any controversy. However, their enforcement is probably minimal.

(e)    International/EU Compliance

Italian law fulfils the requirements of Article 3.1. (c) (iii) of UN 1988 concerning incitement to use. They satisfy Article 10.2 of the Convention on psychotropics of 1971 (henceforth UN 1971), which prohibits advertising.

B.1.5. Other legal measures on drug use

(a)    Legal Measures

Abandoning syringes or other dangerous implements connected to drug use in a public place or in places frequented by third parties is an administrative offence (Article 77 TULS).

Doctors and veterinary surgeons can prescribe medicines the ingredients of which are included in lists I-VI for medical reasons (Article 72 TULS). If they are prescribed for any other reason, this will be considered an illicit transfer punishable by Article 73 TULS (see B.3.1 below).

The substances included in lists IV, V and VI can only be sold on prescription (Article 71 TULS). The violation of this provision is a petty offence (Italian criminal law does not distinguish between offences and crimes, but only between crime — delitto, corresponding to felony and misdemeanour — and petty offence — contravvenzione. The generic word offence (reato) refers to both crime and petty offence).

Driving under the influence of illicit drugs is punished by the highway code (Codice della strada, Article 187), even if the drug (for instance methadone) has been used legally.21

In order to detect someone driving under the influence, the highway patrol may accompany a person who has been involved in an accident or who they have "reasonable grounds" to suspect is under the influence, to a medical facility for testing. The refusal to take a test is punishable with the same penalties as for driving under the influence of drugs. If the tests are positive the prefect can suspend the offender's driving licence and order a review of his competence to hold one. If medical examination certifies the absence of the necessary psycho-physiological state because of addiction, the licence is withdrawn (Article 380 DPR No. 485/92)."

More generally, drug (or alcohol) addiction is considered as a condition that justifies the refusal or the withdrawal of a driving licence (Articles 119 Highway code and 319, 320, appendix II DPR 485/92).

(b)    Intensity of Measures

The offence of abandoning syringes etc is punished by an administrative pecuniary sanction (100.000 to 1 million Lit.). Code: EIM.iii.
Prescription for non-therapeutic use is punished with the same sanctions as prescribed for trafficking (see B.3.1 below).
Selling list IV, V or VI drugs without prescription is punished by a fine from 50.000 to 500.000 Lit.
The penalty for driving under the influence of drugs (or for refusing the medical test) is imprisonment for a period not exceeding one month and a fine from 540.000 to 2.160.000 Lit (petty offence). If there is a conviction, the offender's driving licence will be suspended for a period of fifteen days to three months, or from one to six months if several offences have been committed in the same year. NIM: 4%."
The code of all these sanctions is EIM.iii.

(c)    Judicial/administrative Procedures Followed

Abandoning syringes, etc: enforcement of ordinary administrative procedure. Other acts discussed in this section: enforcement of ordinary penal procedure (see B.1.4 above).

(d)    Passage of law

It was stressed that the prohibition concerning syringes or other drug paraphernalia was not aimed at punishing drug use indirectly, but rather at protecting public safety (Pepino, 1991, p. 70) and public health, in particular due to the fear of the spread of AIDS "
Articles 43 and 83 TULS aim at imposing control on medical activity in order to avoid the spread of drug use under the guise of medical necessity. The aim here is thus the maintenance of law and order. Public confidence is also protected, since any prescriptions that do not correspond to medical need are an offence ('ideological falsehood' — Article 481 PC).

(e)    International/EU Compliance

The regulations referred to above satisfy the requirements of UN 1971 Article 5 Sect. 2 and 7 (a) and Article 9 Sect. 1 and 2. The regulations of Appendix III Article 15 of the EU Council directive No 91/439 of July 29, 1991 concerning driving licences are respected by the Italian highway code.

B.1.6. Policing in relation to drug users or drug possession for personal use

The police do not have any specific powers concerning drug users as such, unless there is an intervening illicit behaviour (see B.1.5.a No 4). For their powers as regards possession for personal use, see below B.2.6.

(a)    Legal Measures

The powers of the police as regards nuisance are those generally prescribed for the maintenance of law and order.' Municipal authorities have wide-ranging powers for local policing (Articles 18 and 19 DPR No. 616/77). Some acts involving public nuisance are defined as minor offences, but the police may intervene, either within the context of their normal activities as regards the prevention of criminal offences, or as part of their duty to help solve private conflicts (Article 1 TULPS).
The duties and powers of the Criminal Investigation Department (Polizia giudiziaria) within the framework of penal investigation are fixed by the code of criminal procedure (Title III of Book I and Title IV of the Book V CPC) and by administrative law (Article 17 law No. 121/81). The Criminal Investigation Department acts under the authority of the judicial authorities (Arts 56 and 59 CPC). It has the duty to denounce to the judicial authority all the penal infringements of which it takes note (Article 331 CPC) and to collect and transmit the complaints (Article 357 CPC). Anonymous complaints cannot be registered (Article 333.3 CPC). Agents of the Criminal Investigation Department must carry out any investigation delegated to them by the judicial authority, they must take the initiative to ensure that there is evidence of the offences concerned, that they identify those responsible and collect any useful element that may facilitate the application of the criminal law (Article 55 CPC). The agents of the Criminal Investigation Department apprehend individuals observed in flagrante (Articles 380 and 381 CPC) and they can temporarily arrest (fermo) people when there is serious circumstantial evidence to suggest that they have committed an offence (of a certain gravity) and that they may escape (Article 384 CPC). Jurisprudence considered that the circumstantial evidence is the same as that required for the application of any limitation of freedom as a preventive measure," i.e. concrete and reliable information on the basis of its origin and specificity," indicating it highly probable that the offence can be connected to the arrested person."
The Criminal Investigation Department has a duty to communicate to the public prosecutor without delay details of all the activities carried out and the information collected (Articles 347 ss CPC). The violation of these functions and duties involves the application of a disciplinary sanction.
Article 13 of law No 689/81 defines the boundaries of investigation with the aim of ensuring that evidence of the administrative infringements is available: information gathering, inspections, seizures and technical operations. These powers, which hitherto were the prerogative of the Criminal Investigation Department, have been extended to the administrative supervisory authorities (Sandulli, 1983, P. 173). Article 13 also limits the powers of the Criminal Investigation Department, which may only carry out searches with the authorization of the judicial authority and may never search the residence of a suspect. Certain acts require the consent of the person concerned.'

(b)    Intensity of Measures

Police interventions aimed at avoiding nuisance — which are relatively limited and carried out primarily at the request of the disturbed citizen — can be defined under the EIM.i code. If they restrict individual freedom (EIM.ii), the injured parties can either resort to the administrative or to the judicial authorities. If they involve reporting a penal infringement, all activities will be subject to the ordinary penal procedure (EIM.iii code).
The activities of the Criminal Investigation Department fall within the framework of the penal procedure (EIM.iii code).
The powers of investigation regarding administrative infringements are structurally part of the procedures covered by Article 6 ECHR (EIM.iii code).

(c)    Judicial/administrative Procedures Followed

Ordinary activities in the maintenance of law and order are subject only to the administrative rules of the police bodies (PF.i).
Normal activities of criminal investigation proceed within the framework of the usual penal procedure (PF.iv).
Activities of investigation aimed at the application of an administrative sanction in theory (see B.1.4 above) follow Article 6.1 ECHR (PF.ii code).

(d)    Passage of law

The process and the discussions that accompanied the adoption of law No 689/81 and of the new code of penal procedure largely exceed the framework of this study. The controversies about the ordinary investigative powers of the police do not relate directly to the matter treated here. The mandatory prosecution principle (Article 112 Const.) forces all crimes to be prosecuted, and the public prosecutor has the same autonomy from executive power as does the judicial power (Article 101 Const.). Despite this, in practice the police act also on the basis of priorities determined by their own hierarchy (Interior Ministry). This has always been particularly obvious in drug matters. Lesions of the principle of equality follow from this situation. The reason for the limited powers of investigation regarding administrative infringements is that less social damage is caused by these infringements when compared to penal ones: the right to punish thus does not prevail over the right to protect privacy.

B.2.    Possession (not for supply)

B.2.1. Measures on drug possession

(a)    Legal Measures

Law No. 685/75 punished the possession of non-moderate quantities of drugs and classified any form of importation in the same way as the offence of trafficking. Law No. 162/90 subjected the possession of a "daily amount" of drugs to administrative sanctions (however, violation of those sanctions constituted a penal infringement) and the possession of higher quantities to penal sanctions. Following the popular referendum of April 18, 1993, importation, purchase and possession of drugs for personal use represent an administrative infringement, regardless of the quantity of the substance involved (Article 75 TULS). Sanctions are applied by the prefect.
It should be noted that, in general, administrative sanctions cannot apply to minors, i.e. a person under 18 years old (Article 2 law No. 689/81). Article 75 TULS includes minors among those subject to the administrative sanctions enforced for drug possession (special laws prevail over general laws — Articles 15, 16 PC). However, the prefect must only issue a warning in cases where sanctions do not appear to serve a useful purpose.
Jurisprudence accepts that the quantity possessed is not important when the substance is clearly intended for personal use;" but the quantity may indicate, along with other circumstantial evidence, that the substance is intended for sale or, in any case, for the use of third persons." However, this element is subject to different interpretations: according to some jurisprudence and scholarly opinion, the possession of a large amount of drugs is insufficient to prove its intended consumption by third parties if there is no other circumstantial evidence:" according to others, the possession of a quantity of drugs which is higher than the needs of the user makes it possible to exclude its intended personal use." In the majority of cases, the burden of proving whether or not the substances are intended for third parties lies with the prosecution (Amato, 1997a, p. 127).
Possession of drugs for group consumption is not explicitly contemplated by the law. It will thus be dealt with by an administrative sanction under Article 75 TULS, the same as possession for personal use.
When there is a transfer of a substance between two or more people the problem becomes more complex. The process of purchase and distribution of the substances can be carried out in several ways, which may be categorised differently from the point of view of their punishability, as underlined by Amato (1997, pp. 132-135). This case is on the borderline between behaviour which attracts administrative sanctions (purchase and possession for personal use) and that which is repressed penally (transfer and possession for purposes of transfer) (see B.3.1 below). Should it be regarded as punishable? And if so by what type of sanction? Jurisprudence (including the Supreme Court of Appeal) has been divided over this question for a long time. On the one hand, it was stated that in order to avoid falling under penal sanctions, use must only concern the individual consumer; any form of transfer, even free, is subject to a penal sanction." On the other hand, some judges considered that the substances bought for use in a group must be regarded as being intended for the individual use of each member of the group. Consequently, this activity is only subject to administrative sanctions."

In 1997, the intervention of the Unified Courts of the Supreme Court of Appeal solved the controversy in favour of the drug users. The Supreme Court decided that there is an administrative infringement (Article 75 TULS) not only in the case of a simultaneous purchase of drugs for personal use by all the individuals pertaining to the group, but also when only some members of the group acquire the substance on behalf of the others and then proceed to its material subdivision. In the latter case, they are considered to be acting on the mandate of the other consumers under the terms of the civil code. However, the condition is that the purchasers are also consumers. Legal scholarship also considers the joint purchase of drugs as an administrative rather than a penal infringement. Indeed, the law does not differentiate between purchasing for individual personal use and for use in a group, since neither one nor the other involves spreading consumption. On the other hand, the purchase by one member of the group on behalf of the others is considered a penal offence, since the activity of obtaining substances for others is envisaged to be among the infringements punished by Article 73 TULS and it facili,tates consumption.'

The procedure of applying administrative sanctions may be suspended if the person decides to undergo, or is undergoing, medical treatment. If the course of treatment is completed, the proceedings are dropped (Article 75 TULS).

(b)    Intensity of Measures

The administrative sanctions which are imposed for importation, purchase and possession of drugs for personal use consist of a suspension of or a ban on obtaining a driving licence, a gun licence, a passport and equivalent documents (for travelling abroad) — or a tourist visa, for foreigners. These measures are applied for a period ranging from two to four months if the breach relates to hard drugs, and from one to three months in the case of soft drugs (Article 75 TULS) (Code: EIM.iii).

These sanctions can be replaced by a warning when the user is a minor; an adult may only receive a warning if soft drugs are involved, and only one warning may be given.

Illicit drugs are confiscated, since they are the product of an illegal manufacture, even when the possessor is not prosecuted because they are only intended for his personal use (Articles 240 PC, 20 law No. 689/1981).

It should be noted that the legislative modifications concerning the decriminalisation of possession for personal use did not substantially modify the situation of consumers in prison. It is estimated that they represented approximately a third of all prisoners before the referendum (in practice, conviction for minor cases of possession for personal use was rare); the ratio remained unchanged after the referendum. However, in the second half of 1993, the arrest of users for trafficking offences decreased. This fact was attributed to the impact of the referendum, after which there was a general reduction in the arrests of users for petty offences.' Arrests decreased again in 1995-1996."

(c)    Judicial/administrative Procedures Followed

Article 75 TULS and law No. 689/81 (Section II of Ch. I) define the procedure to be followed for applying administrative penalties for drug possession. The police inform the user of the charge and of the relevant procedure and invite him to meet the prefect for a "conversation". The user can present his defence to the prefect; even if he refuses to do this, the prefect can apply the sanctions. The decision of the prefect must be justified. It is subject to an appeal (opposizione) to the penal judge, whose decision is subject to an appeal to the Supreme Court. Considered as a whole, this procedure benefits from all the guarantees stipulated by Article 6 ECHR: code PF.iii. Pepino (1991, p. 68) notes that nothing is provided in the law for the application of the sanctions. Normally they will be implemented by the police.

(d)    Passage of law

The regulation of possession for personal use is a core element of law No. 162/90. Its principal rationale was to restrict the illicit drug market. The aim was that of regulating the quantities possessed by users in order to reduce the risk of substances being transferred to others. It was also aimed at inducing users to buy smaller quantities, thereby fragmenting the market and making its operations more difficult. In order to reduce the discretionary capacity of the judge in the application of the law regarding possession for personal use, the 1990 law replaced the concept of "moderate quantity", which had produced a spectrum of widely differing interpretations, by a "daily average amount" fixed by the Health Ministry (see Amato, 1997a, p. 106-108). In abrogating this provision, the 1993 referendum clearly showed that the population did not consider the criminalisation of drug users — via use or possession — to be a relevant and equitable instrument. Moreover, the D.L. No. 3 of January 12, 1993 (enacted before the referendum) widened the area of cases when drug possession was only an administrative infringement; therefore, both government and public opinion were for a decriminalisation of this behaviour.
The introduction of rehabilitative alternatives to imprisonment in the 1980s corresponded to a widespread conviction that prison was a harmful measure for drug users. This approach continued to attract consensus since even law No 162/90, which introduced a more restrictive approach towards consumers, never called these standards into question.

(e)    International/EU Compliance

UN 1988 Article 3.2 prescribes that signatories give the purchase, possession and cultivation of drugs for personal consumption a penal character. However this provision is subject to the constitutional principles and fundamental concepts of the legal system of each State. The Convention also allows for the substitution of conviction and penal sanctions with rehabilitative measures. The fact that this alternative exists and that respect is given to each State's constitution, suggests that this article aims at forcing the States to intervene, but at the same time at leaving room for manoeuvre as to the practical solution adopted.'
Italian legal scholars consider that "the penal neutrality of actions which do not injure, directly or indirectly, other people's rights is (...) a classic principle of the modern constitution" in particular as regards enforcement of Article 8 ECHR, which has been incorporated into Italian law." The consideration that it is impossible to consume without buying and possessing the substance implies that these behaviours are regarded as non-punishable, as is consumption. UN 1988 Article 3.2 cannot therefore be regarded as constraining, since it is in contrast with the fundamental principles of Italian law. It should also be noted that administrative sanctions are classed in a similar way to penal sanctions in several aspects (see B.1.4 above).
Italy's response to the criteria set by international treaties has therefore been to impose administrative sanctions or alternative rehabilitative treatment. The fact that the referendum of 1993 aimed at abrogating all forms of criminalisation of drug possession for personal use was accepted by the Constitutional Court implies that it was in accordance with constitutional principles and did not violate any international regulation.' The official interpretation of UN 1961 Article 33" is respected. The provisions regarding seizures satisfy UN 1961 Article 33 in its official interpretation (Nations Unies, 1975, p. 388).

B.2.2. Means of achieving self-supply for personal use

(a)    Legal Measures

Italian law does not make reference to the growing of plants for the purpose of producing drugs for personal use. Jurisprudence has regulated the problem in a contradictory manner. Some judges have considered that this activity must be sanctioned in an administrative way, enforcing Article 75 TULS." Others have considered that it must be sanctioned penally under Article 73 TULS (see B.3.1 below), since it is not included in the list of activities that attract only administrative sanctions." The Constitutional Court intervened in this controversy. Initially, it left space for a favourably broad interpretation," but subsequently the Court declared that behaviour sanctioned in an administrative way was different from that of growing drugs and that this behaviour must be punished by a penal sanction."

(b)    Intensity of Measures

Since the Constitutional Court retained Article 73 TULS, see B.3.1 below.

(c)    Judicial/administrative Procedures Followed

The ordinary criminal procedure applies (see B.1.4 above).

(d)    Passage of law

Legal scholarship has generally held that, in order to uphold the principle of equality of treatment (Article 3 Const.), the production of drug plants for personal use must be subject to administrative sanctions as prescribed for the purchase, importation and possession for personal use (see Amato, 1997a p. 138). In spite of the most recent decision of the Constitutional Court, scholarly opinion believes it possible to differentiate drug production on a large (agricultural) scale, which is criminalized, from "home production" for personal use, which is subject only to administrative sanctions'. Parliament does not appear to have considered this problem a priority during adoption of the 1990 law. But the question has arisen and cases in which cannabis has been grown for personal use have been subject to judicial judgment. A recent bill (No. 129 of May 9, 1996) proposes to include the growth of cannabis in Article 75 TULS (and to repeal the administrative sanctions stipulated by this provision for possession etc for personal use).

(e)    International/EU Compliance

UN 1988 (Article 3.2) considers the growth of drugs for personal use as identical to purchase and possession carried out with the same aim. In this case, Italian law is more severe than international regulations, since it punishes this activity by the same sanctions that are stipulated for trafficking.

B.2.3. Facilitating possession by others

There are no specific provisions for possession other than those which sanction the offence of making premises available for drug use (see B.1.4 above).

B.2.4. Incitement to possess

No specific regulation. The provisions concerning use apply (sec B.1.4 above).

B.2.5. Any other measures on possession


B.2.6. Policing in relation to drug possession

The police play a significant role vis-à-vis individuals found in possession of drugs, in as much as they carry out a preliminary evaluation of the situation. If the police believe that the substance is intended for personal use, a dossier is sent to the prefect. If they suspect that the substance is intended for transfer, the file is sent to the penal judge. The Interior Ministry have produced a paper (circolare) setting out the criteria by which the police must act: the status of the drug user, the characteristics of possession, the quantity and purity of the substance, the possession of money, etc. In particular the police must verify the absence or existence of a state of addiction on the part of the drug user, without being satisfied by his declarations.'" Otherwise, the general regulations apply (see B.1.6 above).
The police must seize illicit drugs possessed by users (Article 253 CPC).

b)    Intensity of Measures

See B. 1.6 above (Criminal Investigation Department).

(c)    Judicial/administrative Procedures Followed As above.

(d)    Passage of law

See B.1.6 above.

B.3.    Supply

B.3.1. National measures on supply

(a)    Legal Measures

Article 73 TULS punishes the production and the trafficking of narcotics and psychotropic substances, i.e. not only all the activities of production, manufacture and distribution, but also the purchase, possession, and transfer which are not authorized and are not included in the cases stipulated by Article 75 TULS (see B.2.1 above). This article modified the approach previously introduced by law No. 687/75, which differentiated the user-dealer (Article 72) from the trafficker (Article 71) and punished the former in a less severe manner.
However, Article 73 TULS stipulates that the penalty will be reduced in cases deemed 'less serious' because of the circumstances of the action or the quality and quantity of the substances concerned, or if the defendant helps with the inquiry.
The cooperation of three people or more constitutes an aggravating circumstance.
Various other aggravating circumstances are provided by Article 80 TULS: the transfer of substances to minors; incitement of a drug addict, or of a person under the responsibility of the defendant, to commit the offence; cooperation of more than five individuals; promotion or organisation of the offence; offence perpetrated by an armed or masked person; adulteration of the substances increasing their harmfulness; offers aimed at obtaining sexual services from a drug addict; offers close to or inside schools, barracks, prisons, hospitals or centres for drug addicts; very large quantities of drugs.
The quantity of the substance is defined on the basis of the active ingredient contained.' When the quantities are very large, determining the quantity of active ingredient is rendered superfluous."
In cases where a person is charged in relation to the death or injury of a user as a consequence of inciting or facilitating his use, these offences are punished under the generarregulations of the penal code (Articles 586, 589, 590 PC). If the accused has assisted the victim and has informed the authorities immediately, this will be classed as a mitigating circumstance (penalty reduced by a half to two-thirds — Article 81 TULS).
There are no provisions relating to the phenomenon of drug tourism.

(b)    Intensity of Measures

The basic penalty stipulated by Article 73 TULS is imprisonment from 8 to 20 years and a fine (50 to 500 million Lit.) for hard drugs and from two to six years and a fine (10 to 150 mill. Lit.) for soft drugs. (NIM: 83% for hard drugs; 25% for soft drugs). In less severe cases, the penalty is imprisonment from one to six years and a fine (5 to 50 million Lit.) for hard drugs and from six months to four years and a fine (2 to 20 mill. Lit.) for soft drugs. (NIM: 25% for hard drugs; 17% for soft drugs).
If the defendant helps with the inquiry, then the penalty can be reduced by a half to-two thirds.

The aggravating circumstance stipulated by Article 73 TULS creates the ordinary increase in penalties.

For those stipulated by Article 80 TULS, the penalty is increased by a third to a half. For the ancillary penalties provided by Article 85 TULS, see B.1.4 above.
Registration of public establishments (hotels, restaurants, etc.) is refused to individuals who have been sentenced for an offence, including offences under the influence of drugs, or related to drugs (Article 2 Law No. 287/91).
All these provisions can be classified sub EIM.iii.
With regard to the substances concerned in the offence, they are always seized then confiscated (Article 240 PC and Article 85 TULS).
Two provisions regarding patrimonial confiscation related to trafficking involve the reversal of the burden of proof.
— The first concerns (inter alia) the offences stipulated by Articles 73 (except for the less severe cases) and 74 TULS (see B.3.2 below). The convicted has to prove the licit origin of the goods he holds, directly or indirectly, where the value of such goods is disproportionate to the income which has been declared or to the occupation being carried on (Article 12 sexies Law No. 356/92, introduced by law No. 501 of August 8, 1994). This provision was adopted in order to replace a previous one, which punished the unjustified possession of goods disproportionate to the income by people accused or subjected to a preventive measure. The latter was declared unconstitutional because it contrasts with the principle of the presumption of innocence stated by Article 27 ConsC
— The second instance is applied as a preventive measure, which may be applied solely on the basis of a presumption of dangerousness. The Court may order the restraint of goods held, directly or indirectly, by (amongst others) persons suspected of belonging to an organisation engaged in drug trafficking and against whom a personal preventive measure is sought or ordered, where the value of such goods is disproportionate to the income or the occupation, or where there is sufficient evidence that these goods are the profits of an illicit activity or result from re-investment of such profits. If the personal preventive measure is carried out, goods which the holder cannot show to come from a legitimate source will be confiscated. If the personal measure is not applied, restraint will be revoked (Article 2ter Law No. 575/65).
The two cases of confiscation are differently qualified by the law but both involve important restrictions on property rights. Both can thus be considered sanctions from a substantive point of view, according to the jurisprudence of the European Court of Human Rights (EIM.iii) (see also B.1.4 above).

(c)    Judicial/administrative Procedures Followed

The procedure followed in order to punish the offences under Article 73 TULS is the ordinary criminal procedure. The same is true for the first type of confiscation (see B.1.4 above).
The second type of confiscation is applied by a specialised section of the court, and is subject to all the guarantees of jurisdictional procedures (PF.iii).

(d)    Passage of law

By repealing the distinction between trafficker and user-dealer, and by stipulating the sanctions for trafficking that even the introductory report to the bill qualifies as extremely high (Relazione di maggioranza, cit.), the 1990 law is aimed at strengthening the fight against drug trafficking. But the literature stresses that, by introducing the 'less serious' offence, Parliament created a pragmatic and flexible approach that was capable of adaptation as required. Nonetheless this flexibility relies on increased discretionary powers on the part of the judge who applies the law (Pepino, 1991, p. 142-143). The rationale of the provision for' less serious' cases consists in the consideration that the danger of drug use spreading is limited. Jurisprudence stresses that this provision was essential in order to respect the principle of proportionality."
The free transfer to a third person for his use is included under Article 73 TULS, as is confirmed by the Constitutional Court". However, the literature underlines that the penalty should be lower than that for remunerated transfers (sale or traffic)."
The reasons for the introduction of the aggravating circumstances provided by Article 80 TULS are varied: to protect health (private or public) or particularly vulnerable people, or to take account of the greater social fear related to certain kinds of behaviour.
It should be noted that life sentences for the most serious offences has not been stipulated because of the current parliamentary debate concerning the abolition of this penalty, which may well result in its imminent abolition (Relazione di maggioranza, cit.).
As regards illicit trafficking (except for less serious cases), supporters of the decriminalisation of possession were generally in favour of the repressive provisions for trafficking. During the period of parliamentary debate, only supporters of the legalisation of drugs were basically opposed to these provisions.
Preventive measures with regard to assets were introduced in order to reduce the economic influence of mafia-type organisations. Their application has been gradually extended to other categories of (presumed) offences, including conspiracy for drug trafficking. Controversy has accompanied the reversal of the burden of proof introduced by these provisions. In decision No. 48 of February 9-17, 1994," the Constitutional Court affirmed that a provision which presumes the illicit origin of goods where they are disproportionate to income does not violate the principle of the presumption of innocence if it is limited to adopting preventive measures. But, according to scholarly opinion, other constitutional provisions are violated: the right to a defence and the principle of legality." Zanchetti" affirms, however, that the sacrifice of the right to a defence or of the presumption of innocence must probably be regarded as acceptable.

(e)    International/EU Compliance

Almost all of the rules of substantive law in UN 1988 (Article 3 Sect. 1 (a) (b) (c), 5, 7, and 10) are respected by Italian law, except the criminalisation of activities concerning equipment for the production of narcotics (Article 3 Sect. 1 (a) (iv) and 1 (c) (ii)). The equipment will, however, be seized as an instrument of the offence. The rules of substantive law of UN 1961 (Article 36) are also respected, except that regarding the taking into account of judgments pronounced abroad for purposes of establishing recidivism.
The provisions of the penal code as regards confiscation of the object and the instruments of the offence satisfy the requirements of UN 1961 Article 37 and UN 1988 5.1 (b). The special rules concerning confiscation exceed the regulations of UN 1988 Article 5 Sect. 1 (a) and 7 and of Article 2 of the Convention No. 142 of November 8, 1990 on money laundering (CE 1990).

B.3.2. Other criminal offences (a)    Legal Measures

The law stipulates that, in cases of conspiracy with the aim of trafficking in illicit drugs (Article 74 TULS), i.e. when three or more people jointly commit the offences provided for under Article 73 TULS, the offence is sanctioned independently of the substances concerned (soft or hard drugs).
Article 70 TULS was modified in 1996." It regulates the production and trade of precursors by subjecting them to a system of authorisation and controls whose violation involves either penal or administrative sanctions.
The offence of money laundering is punished by the penal code. The first version of Article 648bis PC (introduced by the law No. 191 of May 18, 1978) punished the conversion of illicit profits deriving from the aggravated offences of hold up and racketeering or kidnapping with the aim of racketeering. Law No. 55 of March 19, 1990 added to the list of punishable behaviours the action of hindering the identification of the illicit source of assets, and widened its application to profits deriving from the production of and traffic in drugs. This law also introduced Article 648ter PC, punishing the reinvestment of illicit profits. Law No. 328 of August 9, 1993, which ratified CE 1990 on money laundering, further modified these provisions. The new law added in Article 648bis PC the activities of transfer as well as other operations aiming at hindering the identification of the illicit source of the profits. In both provisions, the reference to specific infringements has been replaced by a general reference to any intentional offence (doloso). Aggravating circumstances: if the infringement is made in the exercise of a professional activity. Mitigating circumstances: if the profits come from an infringement whose maximum penalty is less than five years (Article 648 bis PC) or if the facts are of little significance (Article 648 ter PC).

(b) Intensity of Measures

Those who direct a conspiracy to traffic are punished with a minimum imprisonment of 20 years. Ordinary members are punished by a minimum imprisonment of 10 years (in both cases, the maximum (basic) penalty is 24 years: code NIM 100%).
For ancillary penalties of Article 85 TULS, see B.1.4 above.
2) Violation of the obligations regarding precursors is punished according to the offence. Unauthorised production and distribution of the precursors in category No. 1 attracts imprisonment from 4 to 10 years and a fine (20 to 200 mill. Lit.). NIM 42%. Export without a licence of the substances in categories 2 and 3, or sale to unauthorised people or organisations within the UE, are violations of the obligation to communicate the information concerning the activities: petty offences, imprisonable for a period up to one year, with a fine of 500.000 to 5 million Lit (NIM 4%). Violation of the obligation to communicate the address or other information required to preserve commercial documentation and to report suspicious transactions: an administrative infringement, with a fine from one to 5 million Lit. These penalties can be combined with a suspension of authorisation for a period from one month to one year. A maximum of one year's suspension can also be imposed as a preventive measure.
The penalty prescribed for money laundering is imprisonment of 4 to 12 years and a fine (2 to 30 mill. Lit.). NIM 50%. Aggravating and mitigating circumstances: ordinary increases or decreases.
The study code for all these sanctions is EIM.iii.

(c)    Judicial/administrative Procedures Followed

The procedures followed are the ordinary criminal or administrative procedures (see B.1.4 above).

(d)    Passage of law

The provision for conspiracy to traffic, i.e. for an "associative" offence, is an element of Italian juridical tradition and has not been subject to particular controversy at parliamentary level. The possible objections were in fact broader, bearing in mind the more general problem of the legalisation of drugs. This provision aimed to create a progressive aggravation of all the various forms of participation in drug trafficking (Relazione di maggioranza, cit.). It was considered justified by the fact that the traffic of drugs is one of the most notable examples of organized crime."' The provision is considered to protect both law and order and public health."'
The standards concerning precursors are the only ones that have been adopted in direct response to international requirements.
Scholarly opinion is divided over the rationale for the money laundering provisions. According to Zanchefti (1997, p. 388-389), they derive from the need to protect the administration of justice and, indirectly, law and order, because they are aimed at the identification of the culprits of serious offences. According to Moccia,' the goods protected by these provisions are property. Zanchetti (1997, p. 391-395) underlines however that economic order provides the motivation for Article 648ter PC, which aims at eliminating the distortions of market competition. The fight against domestic organised crime nevertheless remains one of the primary reasons for these provisions, because money laundering has a multiplier effect on the economic power of organised crime, as underlined by Masciandaro."

(e)    International/EU Compliance

The provisions concerning conspiracy satisfy the requirements of UN 1988 Article 5 (a).

As regards precursors, penal regulations exceed the provisions in UN 1988 Article 12.1 and satisfy those of Article 8 of the EU directive No 92/109 of December 14, 1992.
The penal provisions concerning money laundering are partially different from those stipulated by Article 6.1 of CE 1990 (a definition retained by the first article of the EU directive No. 308 of June 10, 199, EU 1991). On the one hand Article 648bis PC replaces the specific intent (dolo) of the individual — described as "the purpose of dissimulating or disguising the illicit origin" (Article 6.1 (a) CE 1990) — with the objective capacity of the individual's behaviour to achieve this goal. On the other, it replaces the list of specific activities listed out by the Convention (Article 6.1 (b)) by a broader reference to "other operations ". Article 648ter PC also punishes the investment of illicit profits in economic or financial activities — behaviour which the Convention includes but which is subject to each State's constitutional principles.

Therefore Italian laws appear to satisfy the international regulations and are, in certain areas, of broader application.

B.3.3. Policing in relation to supply

(a)    Legal Measures

In ordinary law, any activity of the police that exceeds the functions of observation and control, i.e. an indirect and marginal role, and contributes to an illicit act in a significant way is punishable as cooperation in the offence." However the police were granted wider powers for the fight against drug trafficking.'"

Article 97 TULS allows members of the drug squad in the Criminal Investigation Department to buy drugs, but only with the aim of acquiring evidence within the framework of the anti-crime operations organized by (or with) the Anti-drug Central Service." The literature stresses that Article 97 TULS justifies the purchase of drugs and other necessary instrumental offences exclusively." Some consider it regrettable that these limits reduce the effectiveness of undercover police work (Pepino, 1991, p. 158). Wider powers are also granted with regard to controls and searches (Article 103 TULS). Scholarly opinion suggests that these provisions violate Article 13 of the Constitution that protects personal freedom. However, the Constitutional Court has always rejected this assumption." The Criminal Investigation Department can delay or prevent the carrying out of certain types of intervention, when this is necessary in order to acquire evidence or to identify the organiser of the offences provided by Articles 73 and 74 TULS (Article 98 TULS).
Apart from these emergency-type provisions, the powers of the police in the prevention and repression of penally sanctioned offences are subject to the general rules (see B.1.6 above).

(b)    Intensity of Measures

The penal investigations of the Criminal Investigation Department fall within the framework of the criminal procedure (EIM.iii code).

(c)    Judicial/administrative Procedures Followed

The activities of the police as regards trafficking fit within the framework of the ordinary criminal procedure (see B.1.4 above).

(d)    Passage of law

The aim in granting these broad powers to the police was to crack down on drug offences and to make international police cooperation more effective (Pistorelli, 1990, p. 148). Previous uncertainties in jurisprudence and scholarly opinion were also clarified. Some judges believed that the activity of an undercover agent was not punishable, since Article 51 PC justifies illicit acts when they are undertaken to perform a duty imposed by a legitimate provision; the instigation to commit offences was to be included.'" On the other hand, scholarly opinion stated that the duty of the police was to investigate offences and not to encourage the commission of new ones.'' Article 97 TULS seems to support the jurisprudence in stating that the justifying cause only applies to activities expressly considered in the provision which imposes the duty." Therefore, according to Ronco,' Article 97 TULS defines the limits of the general justifying cause when it applies to a specific activity. These standards can be considered to violate the principle of equality of treatment (Article 3 Const.) since the dangerousness of drug trafficking does not appear so much higher in relation to other serious offences as to justify the adoption of exceptional standards.

(e)    International/EU Compliance

Article 97 and 98 TULS satisfy the requirements of UN 1988 Article 11 regarding controlled deliveries.

B.3.4. Any other measures in relation to supply


B.4.    Other measures, applied in national law in response to international or European agreements

(a)    Legal Measures

International conventions on drugs, as far as matters not dealt with under B.1, B.2 or 13.3 are concerned. UN 1988 contains various provisions regarding extra'dition (Article 6) and mutual judicial assistance (art 7). They must be considered applicable in Italian law, which provides that extradition, international rogatory and other relationships with foreign authorities are regulated by the international conventions in force (Articles 10 Const., 13 PC, 696 CPC). Article 99 TULS provided for special powers to search ships in order to combat illegal trafficking by sea as per UN 1988 Article 17. The principle of world competence sanctioned by UN 1971 Article 22.2 (a) (iv) and by UN 1961 Article 36.2 (a) (iv) appears to be applicable in Italy. According to Article 7 PC, under Italian law, the citizen or the foreigner who commits in a foreign country (...) any other crime for which special provisions of law or international conventions establishes the enforcement of Italian law is punished. To my knowledge, it has not been applied.N The provisions of TULS regulating the licit production of narcotics and psychotropic substances for medical purposes correspond to the provisions laid down by UN 1961 and UN 1988 for the former substances and by UN 1971 for the latter.

EU Joint Actions.

No modification of Italian drug legislation was made when implementing the EU Joint action of December 17, 1996 concerning the approximation of laws and practices. The provision of a specific criminalisation for participating in a criminal
organisation existed before any international requirement (arts 416 and 416bis PC).

EU directives on money laundering and precursor monitoring.

In my view, the prohibition on money laundering imposed by EU directive No 308 of June 10, 1991 is respected (see B.3.2 above). Provisions for controls against money laundering had already been introduced before the adoption of the Directive.75 They were supplemented in 1993 and in 1997." Currently, the provisions of the Directive are fully implemented (doubts remain only as to the correspondence of Article 1 Dlgt No. 153/97 with Article 7 of the Directive, as regards suspension or prohibition of the transaction). Italian standards are even more rigorous or wider on certain points. Thus, for example, the obligation to preserve the documentation of banking transactions has been fixed at ten years (instead of the five years envisaged by the Directive) and the threshold of transactions for which customer identification is obligatory is fixed at 20 million Lit. (which is lower than the 15.000 ECU/euros fixed by the Directive). Moreover law No. 227 of August 4 1990 states that all transactions over 20 million Lit, directed to or coming from abroad must be recorded and examined. These provisions were envisaged as fiscal controls, but they impose additional verification procedures that are useful in the fight against money laundering. In 1993 and again in 1994, the Bank of Italy published a document (Decalogo '94) identifying a range of anomalous circumstances that should prompt the reporting of suspicious transactions." Nevertheless, due to the objective difficulties involved in detecting suspicious operations, Comporti" notes that only 1500 reports had been made up to 1996.

The EU directive No. 92/109 of 1992 on precursors was completely reproduced by legislative decree No. 258 of April 12, 1996 and integrated into the TULS (Article 70). In fact, stricter controls are imposed since operators are obliged to communicate each transaction performed to the Anti-drug Central Service (Article 70.7 TULS).

EU directives on the freedom of movement of people. The Schengen Convention was ratified by law No 388 of November 30, 1993. Legislative decree No 470 of November 26, 1992 implemented Directives No. 90/364 of June 28, 1990 and No. 90/365 ofJune 28, 1990 and No. 93/96 of October 29, 1993 into national legislation. Italian law permits three types of deportation of foreigners: (a) police preventive measures for protecting law and order (Article 7 law No. 39 of February 2, I 990);' (b) safety measures following a penal conviction for serious offences (Articles 235 and 312 PC); (c) alternative measures to short prison sentences (Article 7 Law No. 39/1990). The first is decided by the administrative authorities, the second and third are applied by the judiciary.

The provisions of the penal code do not define a foreigner who may be the object of the expulsion measure. The literature stresses that this measure does not apply to citizens of EU Member States who have the right of freedom of movement and residence according to Community laws.'" The provisions of law No. 39/90 apply only to non-EU citizens. In fact, this law prescribes that its provisions may apply to EU citizens if they are more favourable than other laws. The administrative court thus concluded that law No. 39/90 does not apply to EU citizens: indeed, there are no regulations concerning their deportation. Therefore EU citizens benefit from the same status and treatment as Italian citizens, for whom deportation is not possible.' Consequently, the J. Escauriaza decision (R.V.J.E., 1989, 3 CMLR 281) of the ECJ implementing EU directive No. 64/221 of 25 February 1964 and other similar decisions, apply to non-EU citizens." The jurisprudence and legal studies (in particular the recent publication of G. Amato, 1997a) which comment on the various forms of extradition and deportation of foreigners convicted for drug offences do not make a distinction between EU nationals and non-EU citizens. One must thus consider that the aforementioned decision of the administrative Court is not controversial.

B.5.    EU measures having direct effects

The provisions regarding the detection of suspect transactions of precursors have been satisfactorily introduced into national law. The provisions regarding export should be implemented by the regulations and circulars enforcing legislative decree No. 258 of April 12, 1996 (new Article 70 TULS; EU Council Regulations No. 3677/90 of 13 December 1990; No. 900/92 of 31 March 1992; No. 3769/92 of 21 December 1992; No. 2959/93 of 27 October 1993; No. 1485/96 of 26 July 1996). Probably because of its recent adoption, I could not locate either scientific or official documents describing the implementation of the new TULS provision.

Part C. Discussion

It should be stressed that the interpretation of any legal provision is limited by respect for constitutional principles. This is also the case with Community laws that, according to the Italian Constitutional Court, prevail over national laws provided that they do not violate the fundamental principles and freedoms. The Constitutional Court can thus always order the non-application of the Community laws or provisions derived from them which contrast with these principles." One cannot exclude the fact, for example, that one day the provisions regarding precursors may be considered to violate the constitutional principle of freedom of economic initiative (Article 41 Const.).

European law

The EU regulations (relevant for this study) concerning precursors primarily relate to two types of provisions: controls and export. The former provisions correspond substantially to EU Directive No. 92/109 which was transposed into national law. Their implementation falls within the competence of individuals (enterprises) and is subject to penal judicial control. The latter provisions are applied directly by administrative authorities and remain subject to a discretionary capacity which can limit their enforcement, and which are unlikely to be subjected to jurisdictional control. A room for manoeuvre thus always remains. As for the EU Directives, they are generally transposed into national law. This is, however, a characteristically slow process, Italy having been among the slowest of the European countries in terms of its rate of transposition of Directives, at least until 1990."
Law No. 52 of February 6, 1996 (Disposizioni per 1 'adempimento degli obblighi derivanti dall 'appartenenza deli 'Italia aile Comunita europee) provides that the government should adopt the decrees applying several EU directives within one year (Article 1). This demonstrates that the process still tends to be slow. In spite of its length, the process of transposition of the Directives into national law makes them more visible and, therefore, more easily regarded as binding. Moreover, law No. 52/96 (Articles 3 and 7) provides for adoption of penal or administrative sanctions for the violation of EU Directives. Thus, the room for manoeuvre seems more limited in this case.


Italy has ratified the international conventions on drug trafficking and money laundering. These conventions often stipulate a reservation in respect of their provisions, according to the fundamental and constitutional national principles — but not for the basic provisions imposing criminalisation. International conventions are, however, subjected to a wider constitutional control than European laws. Although the room for manoeuvre seems to be broader, it is restricted by the strong political will to maintain strict repression of these activities. This is strengthened by the national will to combat the criminal organisations established in Italy, as shown by the adoption of the provisions which reverse the burden of proof as regards confiscation, in spite of the doubts over their constitutional legitimacy. The room fir manoeuvre here is, in my opinion, relatively weak.

Italy shows that the room for manoeuvre as regards possession for personal use and use can be very broad. The interpretation of the Convention's provision as non-constraining has been supported by a strong will not to criminalise consumers. Whilst they were in force, the penal provisions of law No. 162/90 as regards possession for personal use were practically never applied by judges and prefects very seldom sent them the dossiers. This trend has been legitimated by popular will. The absence of strong international reactions vis-à-vis Italy's decisions shows that the room for manoeuvre in this field is very real, since the will of the specialists and of public opinion is manifest.

Finally, all legal provisions, even the most precise, are open to changing interpretations according to each individual case. There is never a completely rigid situation that would exclude all room for manoeuvre in the application of international laws at national level.

The Italian drug and drug-related laws can be considered to satisfy the provisions envisaged by international and EU laws. Some divergence can, however, be noted; for example:
the non-criminalisation of activities concerning the equipment for the production of narcotics makes the Italian law less severe than international conventions; Italian standards regarding money laundering appear substantially to satisfy international regulations and to be, in certain areas, of broader application;
the punishment for growing drug plants for personal use with the same penalties as those provided for drug trafficking makes Italian law more severe than international conventions require;
as regards precursors, the criminal provisions exceed the requirements of UN 1988 and satisfy those of EU law.

Present debates —future changes?

In the last two years, two main issues have been debated at local and national institutional level, with the aim of modifying the drug laws.

1)    A further reduction of the criminalisation of drug users

At the time of the 1997 National Conference on Drugs in Naples, proposals were put forward to broaden the scope for replacing penal sanctions with rehabilitative treatment and to decriminalise the offences associated with use (small traffic, offences against property). These proposals were not accepted due to opposition in Parliament. It should be noted, however, that a recent law ( No. 165 of May 27, 1998) has facilitated the substitution of a prison sentence with alternative penalties for all offenders. It is not impossible that special provisions for drug addicts will be added in the future.

Moreover various bills propose to introduce harm reduction policies into law,' including the adoption of medical prescriptions for narcotics, following the Swiss model." A similar request was made to the government by some municipalities, such as Turin. These provisions could well be adopted (one day). 2)    Regulating the production and supply of drugs

Bill No. 128 of May 9, 1996 proposes the legalisation of cannabis derivatives. In 1996, the Turin City Council also asked the government to examine proposals for the legalisation of cannabis (see Campedelli, Pepino, 1997).

A call for a substantial decriminalisation of use-related activities and for a differentiated approach to the regulation of substances was launched in 1996 in Venice, and was supported inter alia by a score of local administrations, Magistratura Democratica Ian association of magistrates] and the trade union of the police, SIULP."

In spite of these tendencies, the desire to repress drug trafficking and organized crime is very rigid. Italy has followed the general movement of multiplication and rationalisation of penal and administrative standards that characterize international law in these fields. Internal measures of rationalisation of the police and of the judicial forces specialised in organised crime, and the existence for many years of a central anti-drug service within the Interior Ministry have equipped Italy to implement and make full use of the system being developed through Europol.

1 Pisapia, G., 1996, La législation italienne en matière d'usage de stupéfiants, in Cesoni, M.L. (ed.), 1996, Usage de stupéfiants: politiques européennes, Genève, Georg.

1 Decreto del Présidente della Repubblica del 9 octobre 1990, n. 309. Testo unico delle leggi in materia di disciplina degli stupefacenti e sostanze psicotrope, prevenzione, cura e riabilitazione dei relativi stati di tossicodipendenza. This text joins together the law No. 685 of 1975 like amended by the law No. 162 of 1990 and later on.

2 Cass. pen., sez. 1, April 23, 1988, No 5012, Pacilio.

3 Cass. pen., sez. VI, September 26 1991, No. 10005, Leone.

4 See for all: Cass. pen, sez. VI, November 211990, No 15444, Gambuzza

5 Law No. 532 of 12 August 1982; Law No. 398 of 28 July 1984; Law No. 297 of 21 June 1985.

6 Illicit traffic involving very large quantities of the substances, participation in an organisation formed for the purpose of illicit trafficking, and the more serious offences covered by the penal code.

7 Bollettino d Wormazione dell'Osservatorio nazionale sul fenomeno della tossicodipendenza (ministero della Giustizia), No. 1, 1993a.

8 Relazione di maggioranza delle commissioni permanenti Giustizia e Igiene e sanita riunite sul disegno di legge n. 1509 E AA (Comunicata alla presidenza 11 13 novembre 1989).

9 For a presentation of the parliamentary reports and debates, see cf. Marini, G. et al., 1990, Stupefacenti, sostanze psicotrope, stati di tossicodipendenza. 11 nuovo regime sanzionatorio, Torino, Giappichelli, pp. 185-436.

10 Pepin°, L., 1991, Droga e legge. Tossicodipendenza, prevenzione e repressione, Milano, Franco Angeli, p. 52.

11 Sent. July 11, 1991, No 333, Cass. pen., 1992, 576.

12 NB. A life penalty exists in Italy. However, there are two reasons which make the maximum limit of the basic prison sentence more relevant to our comparison. Firstly, a life sentence does not have limits and thus it is impossible to establish a ratio for this one. Secondly, a law which repeals the life penalty is under discussion and should be adopted soon by the Italian Parliament. It thus should be regarded that the code NIM=100%, corresponding to 24 years of prison, is lower than 100% in connection with the life sentence, currently planned for offences such as aggravated murder (Art. 576 PC). It must also be stressed that the maximum general limit of imprisonment in cases of aggravating circumstances is 30 years. However, the complicated system of combining aggravating and mitigating circumstances, which applies to every case, makes any abstract definition of this limit non pertinent. I thus consider it more relevant to refer to the basic penalty for each offence. Finally, in my view, since the maximum penalties are very rarely applied by the courts, the minimum penalties (which influence, for example, the possibility of suspending the sentence or granting release on parole) would be more relevant to a comparison of the seriousness of the repressive will of the legislator.

13 Sent. February 24, 1995, No 58.

14 Modifiche al sistema penale (Amendments of penal system), also called Legge di depenalizzazione (Decriminalization Act).

15 The law refers to the pecuniary penalties. However, it is considered to regulate the whole administrative "punitive" sanctions, other than the disciplinary actions. See Sandulli, M.A., 1983, Le sanzioni amministrative pecuniarie, Napoli, Jovene, p. 37-40. See also Cass. sez. un., April 28, 1986, No. 2954.

16 'Rossi Vannini, A., 1990, Illecito depenalizzato — amministrativo, Milano, GiuffM, p. 193-229.

17 See Cons. Stato, sez. 1V., May 25, 1979, No. 377, Giur. it., 1980, III, 1,1; Cons. Stato, sez. IV, April 22, 1980, n. 411.

18 k0nig judgment of June 26, 1978, series A, No. 27, par. 90.

19See G. Cohen-Jonathan, 1989, La Convention européenne des droits de l'homme, Paris, Economica — Presses Universitaires d'Aix-Marseille, p. 397-402.

20 February 21, 1984, Series A, No. 73.

21 Trib. Firenze, January 4, 1990, Riv. Giur. circ. trasp., 1991, 648.

22 Administrative authority which represents the government at the local level.

23 DPR No. 485 of December, 12, 1992, Regolamento di esecuzione e di attuazione del nuovo cod/ce della strada (Regulations enforcing the new highway code).

24 NB: the maximum penalty which can be inflicted for petty offences is 3 years imprisonment (5 years in case of aggravating circumstances).

25 Riondato, S., 1990, Riciclaggio, opposizione aIle ispezioni, abbandono di siringhe, agevolazione, istigazione, propaganda pubblicitaria, reati del datore di lavoro, in Marini et al., 1990.

26 RD. 18 June 1931 No. 773 (and subsequent amendments), Testo unico delle leggi di pubblica sicurezza (Single Act on public safety matters); Law No. 1211 of April 1981. Nuovo ordinamento dell'amministrazione della pubblica sicurezza (New law on public safety administration).

27 Cass. pen, sez. 1, June 22, 1992, No 1090, Criscuolo.

28 Cass. pen., sez. I, ord. July 27, 1993, No 2728, Moccia.

29 Cass. pen., sez. I, April 1, 1994, No 752, Mostaccio et al..

30 Amato, G., 1997a, I traffici illeciti di sostanze stupefacenti, Milano, Giuffre, p. 124.

31 Cass. sez. un., June 18, 1993, Gambacorta, Cass. pen., 1993, 2820.

32 See several jurisprudential decisions quoted by Amato, 1997a, p. 115-123.

33 Cass. sez. VI, December 9, 1993, Presciutti, Mass. cass. pen., 1994, fasc. 8, 100; Amato, 1997a, p. 113- 114.

34 Cass. sez. VI, January 111994, Razzauti, Fora it., 1994, II, 694; Cass., sez. VI, October 29, 1993, Dall' 0', Cass. pen., 1994, 1670.

35 See inter alia: Trib. Roma, August 5, 1993, Barbara etal., Fora it., 1993, II, 574; Cass., sez. V, January 18, 1994, Trainito, Giur. it., 1994, II, 716.

36 See inter cilia: Trib. Naples, October 21, 1993, Sessa et al., Cass pen., 1994, 1961. Cass., sez. IV, May 4, 1994, Bonsignore, Foro it.,1995, II, 547.

37 Amato, G., 19971), L'interpretazione delle Sezioni unite sut trattamento dell'"uso di gruppo" di sostanze stupefacenti, Foro it., 1997, II, 529.

38 See Bion, 1993b, Bollettino d 'infOrmazione dell 'Osservatorio naz onale sol .fenomeno della tossicodipendenza (minister° della Giustizia) No. 2.

39 Daga, L., 1993, Dopo l referendum. Quali gli effetti sulla popolazione penitenziaria tossicodipendente? Fatti e cifre, Bollettino d'infOrmazione dell 'Osservatorio nazionale sul fenomeno della tossicodipendenza (ministero della Giustizia) No. 2, 1993b.

40 EMCDDA, 1997, Annual report on the state of the drugs problem in the European Union, Lisbona.

41 Cesoni, M.L.,1997, Consumo di sostanze stupefacenti e principio di uguaglianza, in Campedelli, M., Pepino, L., (eds.), 1997, Droga: le alternative possibili, Torino, Ed. Gruppo Abele, p. 78.

42 Pepino, L., 1997, Uso di droghe e diritti fondamentali, in Campedelli, Pepino, 1997, P. 65.

43 Constitutional court, sent. February 4, 1993, No. 28.

44 Nations Unies, 1975, Commentaires sur la Convention unique sur les stupéfiants de 1961, New York, NU., p. 387-388.

45 Corte App. Catanzaro, March 23, 1994, Noia, Foro it., 1994, II, 510.

46 Trib. Modena, December 19, 1994, Novelli, Foro it., II, 634; Cass., sez. IV, March 15 1995, Paoli, Mass. cass. pen., 1995, fasc. 8, 112.

47Sent. December 23, 1994, N 443, Fora it., 1995, 1,472.

48 Sent. July 24, 1995, No. 360, Foro it., 1995, I, 3083.

49 Amato, G., 1995, Nuovi interventi giurisprudenziali in tema di coltivazione di piante da cui si estraggono sostanze stupefacenti, Cass. pen., 1995, 2825 ss.

50 Min. degli Interni, Dipartimento di pubblica sicurezza, circolare of September 11, 1993, quoted by Amato, I 997a, p. 123.

51 Trib. Roma, January 22, 1988, Greco, Giur. merit°, 1990, 867; Cass. sea. VI, April 10, 1986, Anunziata, Giust. pen., 1987, II, 468.

52 Cass. ses. VI, February 18, 1989, Alberici, Riv. pen., 1990, 399.

53 Sent. February 17, 1994, No. 48, Cass. pen, 1994, p. 1455 ss..

54 Cass. sez. VI, May 17, 1994, Vizza, Cass. pen., 1995, 716.

55 Sent. July 23, 1996, No. 296, Giur cost., 1946, 2465.

56 Amato, G., 1996, Acquisto e detenzione per uso personale: queste le condotte depenalizzate dal referendum, Guida al diritto, 1996, fasc. 32, 70.

57 Gazz. tiff No. 9 of November 11, 1994, 1st special series.

58 Fomasari, G., 1994, Strategie sanzionatorie e lotta alla criminalità organizzata in Germania e in Italia, Riv. trim. dir pen. ec., pp. 743-781 (see p. 767 ss).

59 Zanchetti, M., 1997, II riciclaggio di denaro proveniente da reato, Milano, Giuffrè, p. 298.

60 By art. 2 Legislative decree No. 258 of April 12, 1996.

61 Relazione di minoranza delle eommissioni permanenti Giustizia e Igiene e sanita (relatore Salyut()) sul disegno di legge n. 1509 E AA, comunicata alla presidenza il 20 novembre 1989.

62 Fortuna, E., 1990, Stupefacenti (diritto intemo), in Encielopedia del diritto, Milano, Giuffre, p. 1204 ss.

63 Moccia, S., 1995 Impiego di capitali illeciti e riciclaggio: la risposta del sistema penale italiano, Riv. it. dir proc. pen., 1995, 11, p. 728-749 (see p. 738 ss.).

64  Masciandaro, 1994, Banche e riciclaggio, analisi economica e regolamentazione, Milano, Giuffre, p. 37 ss. "

65 Cass. Sez. VI, July 6, 1990, Carpentieri, Mass. Cass. pen., 1991, fasc. 1, 66.

66 See Cass. sez. VI, April 17, 1994, Curatola, Cass. pen. 1995, 710. In literature: Amato, 1997a, P. 406.

67 A similar capacity has been introduced for acquiring evidences of the offences concerning weapons and money laundering (Art. 12quater law No. 356 of August 7, 1992, Conversione in legge, con modificazioni, del decreto-legge 8.6.92 No. 306, recante modifiche urgenti al nuovo codice di procedura penale e provvedimenti di contra.sto alla criminalita mallow).

68 Caselli G.C., Garavelli, 1991, Gli acquisti simulati di droga, p. 168, in AA.VV., Iltesto unico delle leggi in materia di stupefacenti, Milano, Giuffrè.

69 See Pistorelli, L.,I990, Disposizioni sull'attività di polizia giudiziaria, in Marini et al., 1990, pp. 161- 163.

70 Cass. pen., Sez. I, February 28, 1969, Murgia et al., Arch. pen., 1970, II, 408.

71 Mantovani, F., 1988, Diritto penale, Padova, CEDAM; Pistorelli, 1990, 148.

72 Cass. pen., sez. I, November 27, 1968, No. 1569, Muther et al; Cass. sez. V, February 19, 1990, No. 2377, Dilellis.

73 Ronco, 1990, Il controllo penale degli stupefacenti, Napoli, Jovene.

74 National authorities are generally reluctant to apply the world competence principle and prefer to appeal to different means, such an extensive interpretation of national laws. In the drug field, even the United States does not appeal to world competence but applies the principle of extended territoriality.

75 By the D.L. No. 143 of May 3, 1991, Provvedimenti urgent! per limitare l'uso del contante e dei titoli al porta fore nelle transazioni e prevenire l'utilizzazione del sistema finanziario a scopo di riciclaggio (Emergency provisions to limit the use of cash and bearer bonds in transactions, and to prevent the use of the financial system for laundering purposes), converted to a law and amended by the Law No. 197 of 5 July 1991.

76 Legislative decree No. 385 of September I, 1993, Test° unico delle leggi in materia bancaria e creditizia (Single act on credit and banking). Legislative decree No. 153 of May 26, 1997. For a detailed survey, see Donato, L., Masciandro, D., 1996, Criminalita e intermediazione finanziaria. Economia e diritto, Rome, Bancaria Editrice; Ferrajoli, L., Melchionna, B., 1993, La normativa antiriciclaggio, repressione penale. Disposizioni amministrative. Technicise di investigazione, Milano, Pirola; Zanchetti, 1997.

77 For the list of these indications cf Gianfelici, E., 1996, II segreto bancario. Norme civili, penali, fiscali, Milano, Giuffrè, pp. 244-248.

78 Comporti, M., 1996, Identificazione della clientela, segnalazione di operazioni sospette di riciclaggio e tutela della riservatezza, in Corvese, CG., Santoro, V., 1996, 11 riciclaggio del denaro ne/la legislazione civile e penale, Milano, Giuffrè, p. 399.

79 D.L. No. 416 of December 30, 1989, Norme urgent/ in materia di asilo politico, di ingress° e soggiorno dei cittadini extracomunitari e di regolarizzazione dei cittadini extracomunitari ed apolidi gia presenti net territorio dello Stato, amended by law No. 39 of Frebruary 28, 1990.

80 Grasso, Comunità europee e diritto penale, 317, cit. in Crespi, A., Stella, F., Zuccalà, G., 1992, Commentario breve al cod/ce penale, Milano, CEDAM, p. 235.

81 T.A.R. Friuli-Venezia Giulia, No. 505 of November II, 1992, Foro it., rep. 1993, No. 24

82 See the comment on Gallagher decision No. C-175/94 of November II, 1995, of the ECJ (Foro it., 1996, IV, p. 453-463).

83 See Morisi, M., 1992, L'attuazione delle direttive CE in Italia, Milano, Giuffre, p. XVII-XXVII, and Corte costituzionale, Sent. No. 232/1989.

84 See Morisi, 1992, p. 7-10.

85 Bill No. 2065 of July 31, 1996.

86 Bill No. 228 of May 9, 1996; Bill No. 1930 of July 19, 1996; Bill No. 1021 of May 17, 1996.

87 Resolution approved in Venice 13 October 1996 as outcome of the conference "Infemi territoriali e paradisi finanziari", in Campedelli, Pepino, 1997.


Our valuable member Maria Luisa Cesoni has been with us since Wednesday, 16 March 2011.