Pubblicato il di Avv. Carlo Malvone

Cannabis Light: i limiti di THC e le decisioni della Corte di Cassazione – La Sentenza n. 4920/2019 e le precedenti

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La sentenza della Corte di Cassazione - Sez. VI - n. 4920/2019

Nel precedente articolo abbiamo parlato dell'arbitraria ed errata interpretazione del Ministro dell'Interno in merito ai limiti di THC consentiti per la vendita di infiorescenze e di Cannabis Light ed accennato le decisioni della Corte di Cassazione - in primis la Sentenza n. 4920/2019.

A dimostrazione di tale assunto, i Tribunali di merito e la Corte di Cassazione, con la sentenza n. 4920/2019 del 31 Gennaio 2019, hanno completamente smontato tale assurda interpretazione.

Con la presente sentenza è stata infatti sancita l'assoluta legittimità della vendita di infiorescenze con THC nei limiti dello 0,6 %.

La Corte, in particolare, si basa sulla medesima interpretazione da me fornita sia nel presente, sia nel precedente articolo pubblicato.

La stessa, infatti, afferma a chiare lettere che la L. 242/2016, successiva al D.P.R. 309/1990, esclude dall'ambito di applicazione della normativa sugli stupefacenti le coltivazioni certificate di Canapa, in toto.

L'interpretazione della L. 242/2016

La Corte afferma esplicitamente che il limite massimo di THC previsto dalla normativa è quello dello 0,6 %.

Dunque, non lo 0,2 % ma appunto lo 0,6 % è il limite entro cui la sostanza non deve essere considerata stupefacente e non deve rientrare nell'ambito di applicazione del D.P.R. 309/1990.

La Corte, corroborando la mia interpretazione, afferma che, pur se non esplicitamente presa in considerazione della L. 242/2016, "risulta del tutto ovvio che la commercializzazione sia consentita per i prodotti della canapa oggetto del "sostegno e della promozione", in particolare "i semilavorati".

La Corte riprende la Circolare del Ministero delle Politiche agricole che "ha ricondotto le infiorescenze (lett. g) alla categoria del florovivaismo così considerando lecito il loro commercio".

Il Collegio cita varie decisioni dei Tribunali di merito (cfr. Tribunale di Ancona 27 Luglio 2018, Tribunale di Rieti 26 Luglio 2018, Tribunale di Macerata 11 Luglio 2018, Tribunale di Asti 4 Luglio 2018).

Cita inoltre la prevalente dottrina, "secondo cui la liceità della commercializzazione dei prodotti della predetta coltivazione (e, in particolare delle infiorescenze) costituirebbe un corollario logico-giuridico dei contenuti della L. 242/2016".

Così facendo, stabilisce la legalità della vendita di infiorescenze e di Cannabis Light - ed in genere di prodotti - con concentrazioni di THC entro lo 0,6 %.

Ciò, ovviamente, deriva dal principio secondo cui ciò che non è espressamente vietato deve essere consentito.

Considerazioni

Corrolario di tale innovativa ma più che corretta decisione è, dal mio punto di vista, che in presenza di coltivazioni certificate, con THC entro lo 0,6 %, non è consentito il sequestro del prodotto, ma il semplice prelevamento dei campioni per le analisi.

Inoltre, pur se in presenza di un prodotto con THC superiore allo 0,6 %, se derivante da sementi certificate, dovrà in linea di massima essere comunque esclusa l'applicazione della Legge sugli Stupefacenti.

Infine, cosa non da poco, si ritiene che neppure sarebbe vietato l'utilizzo, al consumatore finale, delle infiorescenze come prodotto da fumo, in quanto si tratterebbe di una illegittima limitazione della libertà personale dell'individuo.

Le precedenti decisioni della Corte di Cassazione: Sentenza n. 34332/2018 - Sez. IV e Sentenza n.  52003/2018 - Sez. VI

Prima di tale decisione, vi sono tuttavia da segnalare dei precedenti contrastanti: la Sezione IV della Corte di Cassazione, infatti con la Sentenza n. 34332 del 13 Giugno 2018 aveva perentoriamente stabilito che "il destinatario del margine di tolleranza fissato tra lo 0,2 e lo 0.6 % è l'agricoltore", con esclusione dunque dell'applicabilità della normativa della legge 242 del 2016 a chiunque sia implicato nella commercializzazione dei prodotti della sostanza coltivata.

Del medesimo avviso sembrava essere anche la Sezione VI che, con la Sentenza n. 52003 del 10 Ottobre del 2018 aveva confermato l'orientamento restrittivo negli stessi termini già evidenziati.

Nella motivazione della sentenza si afferma infatti che l'esenzione di responsabilità alle condizioni di legge prevista dalla L. 242/2016, "al di là della denominazione della legge in questione (Disposizioni per la prevenzione della coltivazione e della filiera agroindustriale della canapa) è espressamente ed esclusivamente riferita al solo agricoltore").

La Sentenza n. 56737/2018 - Sez. VI

Si ritiene che la medesima Sezione VI, con la Sentenza n. 56737 del 17 Dicembre 2018, pur confermando le statuizioni delle precedenti e dunque l'illiceità della vendita di infiorescenze, abbia poi dato il là al mutamento di orientamento di cui alla sentenza n. 4920/2019.

Il Collegio, infatti, spiega che la vendita di infiorescenze e delle relative resine - e dunque la loro detenzione ai fini di cessione - configurano il reato di cui all'art. 73 del D.P.R. 309/1990 ma precisa altresì che tale configurazione avverrebbe "solo se nelle stesse sia rinvenibile un principio attivo in grado di indurre un effetto drogante rilevabile".

Poichè, dal Nostro punto di vista, le infiorescenze con contenuto di THC compreso tra lo 0,2 e lo 0,6 % non possono essere considerate con effetto drogante, la Corte - indirettamente e probabilmente senza volerlo - ha affermato che, se le infiorescenze contengono un contenuto di THC non drogante (ovviamente sempre se provengono da sementi certificate - n.d.r: "implicitamente nei limiti di cui alla L. 242/2016") non rientrerebbero nell'ambito di applicazione del D.P.R. 309/1990.

La decisione della III Sezione della Corte di Cassazione e il cambio di orientamento

In effetti, con un'interessante decisione del 19 Dicembre 2018 (la n. 12/2018), la cui sentenza non è stata ancora depositata, la Sezione III della Corte di Cassazione ha stabilito la liceità della vendita di infiorescenze.

I limiti sarebbero piuttosto ristretti:

  1. deve trattarsi di una delle varietà ammesse iscritte nel Catalogo europeo delle varietà delle specie di piante agricole, che si caratterizzano per il basso dosaggio di THC;
  2. la percentuale di THC presente nella canapa non deve essere superiore allo 0,2%;
  3. la coltivazione deve essere finalizzata alla realizzazione dei prodotti espressamente e tassativamente indicati nell'art. 2, comma 2, l. 242/2016 cit., fermo restando che, per la sussistenza del reato di cui all'art. 73, comma 4, d.P.R. 309 del 1990 a carico del commerciante, occorre verificare l'idoneità della percentuale di THC a produrre un effetto drogante rilevabile.

Si conferma comunque l’interpretazione che sosteneva che il limite dello 0,6% fosse una semplice clausola di salvaguardia dalle conseguenze penali per il coltivatore.

Questo renderebbe illegali i prodotti che in questi mesi di incertezza normativa avevano giocato sulla forbice 0,2/0,6% di THC per stare sul mercato.

In ogni caso, per la prima volta viene affermato che la commercializzazione, anche delle infiorescenze, sarebbe lecita, pur nei ristretti limiti di THC dello 0,2 %.

L'ultima decisione della Corte di Cassazione - Sez. IV

Venerdì 8 Febbraio 2019, la Sezione IV, nuovamente intervenuta sulla liceità della commercializzazione delle infiorescenze, ha finalmente rilevato un contrasto interpetativo, rimettendo la decisione alle Sezioni Unite della Corte di Cassazione.

Tale decisione porrà fine ai dubbi interpretativi, sperando ovviamente nel senso di considerare lecita la commercializzazione di infiorescenze con contenuto di THC compreso tra lo 0,2 e lo 0,6 %.

Si ritiene comunque che la decisione, più che sulla liceitá o meno della commercializzazione che - come ben espresso dalla Sentenza n. 4920/2019 dovrebbe essere un corollario logico della L. 242/2016 - dovrebbe concentrarsi sulla questione dei limiti di THC e dunque, dando per scontato la liceità della commercializzazione, stabilire se il limite di THC dello 0,6 % sia applicabile al solo coltivatore o anche al commerciante.

Del resto, come abbiamo più volte affermato negli articoli precedenti, non avrebbe senso consentire all'Agricoltore di produrre un prodotto con THC sino allo 0,6 %, senza procedere - in caso di controlli - a sequestro e distruzione, e poi non consentirne la vendita.

Seguiremo l'evoluzione della questione a seguito della confortante - pur se unica - decisione di cui alla Sentenza n. 4920/2019 della Sezione VI della Corte di Cassazione.

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