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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  190. L’UFCM a constaté depuis quelques mois l’accroissement des tromperies à la « roqya ». Les témoignages de personnes victimes de ces pratiques se multiplient et présentent les mêmes caractéristiques : « Une personne vous appelle et vous propose une séance de « roqya » gratuite. Cette personne vous propose de rappeler un numéro prétendu gratuit, souvent un numéro commençant par 0 800… » Mais, dans les faits, cette prestation est loin d’être gratuite, puisque la conversation est facturée à vos frais et à votre insu. Au-delà de l’aspect juridique qui est traité à ce jour par le pôle juridique de l’UFCM[1], ce procédé soulève la problématique de sa conformité au Coran et à la Sunna. En effet, la « roqya » peut se définir comme une thérapie qui permet de soigner les actes de sorcellerie, de mauvais œil et également de se protéger contre ces derniers. Par conséquent, est-il possible de la pratiquer par téléphone et quelles sont les exigences édictées par le Coran et la Sunna ? Nous présenterons ainsi successivement les conditions liées au soignant (I), les exigences relatives à l’environnement où est réalisée la « roqya » (II). Nous aborderons ensuite la question de la gratuité de la prestation ou de sa contrepartie financière et enfin les conditions dans laquelle elle est réalisée (III). I- Les conditions liées au soignant Souvent la « roqya » est perçue comme une pratique dispensée par un tiers. Or, il est essentiel de rappeler et de souligner un fait important : la meilleure des « roqya » est celle que nous dispensons nous-mêmes à travers le « dhikr » et la récitation du Coran. Ainsi, pour se prémunir des maux liés au mauvais œil ou à la sorcellerie, il convient régulièrement de lire le Coran et faire des invocations notamment celles du matin et du coucher, de réciter régulièrement la sourate « La vache », de renouveler son intention, de placer la certitude dans son cœur, d’effectuer ses prières etc., et surtout de demander à Allah la meilleure des protections. Toutefois, dans certaines conditions, il est nécessaire de recourir à un soignant. C’est à ce stade qu’il convient d’être vigilant. Il ne suffit pas de se rendre auprès d’une personne qui se présente avec la qualité de cheikh ou d’imam pour accepter de lui confier cette pratique. Comme pour tout procédé et encore plus lorsque cela relève de considérations religieuses, il est important de bien choisir son soignant car ce dernier est tenu de posséder des qualités bien affirmées. La maîtrise du Coran et des traditions prophétiques en la matière est une condition sine qua none, mais insuffisante. La personne doit également avoir des notions de psychologie afin de déterminer la part de sorcellerie et celle de troubles psychologiques fréquents chez les patients. La personne doit posséder une bonne hygiène de vie, notamment spirituelle puisqu’il n’est pas inutile de rappeler que le succès de la « roqya » dépend de Dieu. Ces critères sont difficilement évaluables, surtout par une personne qui est affectée par un mal-être, quelle que soit sa source. C’est pourquoi les proches doivent accompagner la personne dans la recherche d’un soignant qualifié et reconnu comme tel par des référents religieux de la localité (imam, responsables associatifs, etc.). De manière générale, le soignant doit posséder des qualités déterminées que nous pouvons synthétiser de la manière suivante. Il doit : être en capacité de lire le Coran, croire avec certitude au Coran, être empreint de piété, connaître les pièges et les caractéristiques du diable et des djinns, connaître la méthode prophétique de la « roqya », disposer de connaissances de base en psychologie, avoir la conviction que le succès de sa thérapie dépend de Dieu. A l’exception de la première exigence, il semble difficile de vérifier les autres conditions dans le cadre d’un entretien téléphonique avec une personne que nous n’avons jamais rencontrée, même si elle se présente sous le titre de « cheikh » ou d’un imam. Par conséquent, ces conditions soulignent une première limite quant au recours à la « roqya » par téléphone. Par ailleurs, à l’instar de tout médecin, le soignant doit, avant de prodiguer des conseils ou une médication, procéder à une consultation. Ainsi, un environnement adéquat est indispensable pour la réalisation d’une « roqya ». Il est enfin inconcevable qu’un médecin puisse vous affirmer par téléphone connaître votre maladie et attester pouvoir vous guérir. Vous auriez plus que des doutes sur ce prétendu médecin. II- Un environnement propice et la réalisation d’une consultation préalable à la réalisation d’une « roqya » Il est intéressant de noter que, dans son ouvrage « Comment se protéger des djinns & satan », Wahîd ‘Abdussalâm Bâli évoque l’importance du climat pour réaliser une roqya[2]. Ainsi, il expose les points suivants : « 1. Préparer le climat adéquat en faisant par exemple sortir les images et les statues de la pièce où on va soigner le malade, pour permettre aux anges d’y entrer. 2. Débarrasser le sujet de tout ce qu’il peut porter sur lui comme talismans ou amulettes et les brûler. 3. Éteindre tout ce qui peut émettre le son de la musique et des chants. 4. Vider le lieu de tout ce qui comporte une infraction à la shari‘a à savoir, par exemple, la présence d’un homme qui porte de l’or ou une femme qui ne porte pas le voile légal – al-hijab. 5. Donner au malade et à sa famille une leçon de dogme de façon à ce que leurs cœurs ne soient pas attachés à un autre qu’Allah. 6. Leur faire savoir que la façon de soigner est différente de celle des sorciers et des charlatans et que le Coran recèle guérison et miséricorde, comme l’a informé Allah le Puissant et le Majestueux. 7. Diagnostiquer son cas : pour cela poser des questions au malade pour s’assurer de la présence de tous les symptômes (…) ». Or, dans les témoignages communiqués, l’interlocuteur qui se présente comme soignant ne pose aucune question aux personnes. Il débute ainsi la « roqya » directement par une récitation du Coran. En outre, il est intéressant de souligner que dans l’un des témoignages communiqués à l’UFCM, l’interlocuteur demandait à la personne de remplir successivement des verres de lait, d’huile, d’eau etc. et de les poser par la suite sur la table de la salle à manger. Au point que la personne s’est retrouvée avec une multitude de verres posés sur la table. Le comble est que la personne ignorait ce qu’elle devait en faire lorsqu’elle a pris conscience de la tromperie. Nous constatons par conséquent qu’une « roqya » ne peut être réalisée dans un environnement quelconque. En effet, une procédure de diagnostic est essentielle. Nous pouvons à titre d’exemple faire le parallèle avec un rendez-vous chez le médecin ; ce dernier ne peut vous prescrire une ordonnance sans au préalable vous avoir ausculté et interrogé sur les différents symptômes que vous ressentez physiquement. A défaut, au lieu de guérir vous allez aggraver vos maux. Cette attitude vigilante du médecin traitant doit se retrouver lorsque nous envisageons le recours à une « roqya ». Pour illustrer ce propos, nous citerons l’exemple de l’anthropologue, spécialiste de l’islam européen, Farid El Asri, chercheur associé au Centre Jacques Berque, qui nous rapporte une situation alarmante suite à une « roqya » : « Une jeune femme en Belgique (…) est morte suite à une tentative d’exorcisme. Pendant les séances, les fkihs (imams) utilisent normalement de l’eau « coranisée ». Pour cette jeune femme, prétendument stérile, les exorcistes ont carrément plongé son visage dans l’eau et quand elle tentait d’en sortir pour respirer, les guérisseurs estimaient qu’il s’agissait du jinn qui l’habitait et ils replongeaient son visage dans l’eau. Pendant le procès, la famille de la défunte s’est présentée comme musulmane et a accusé ces pratiques d’être extérieures à l’islam quand les guérisseurs estimaient qu’ils avaient simplement fait ce qu’ils pouvaient. Le fait de recourir trop systématiquement au fkih risque également de faire passer une crise d’épilepsie, par exemple, pour une crise de possession. »[3] Nous allons aborder enfin la dernière problématique, celle relative aux honoraires du soignant. III- Les honoraires du soignant Le Prophète, bénédictions et salut sur lui, « a agréé les Compagnons qui ont été payés pour la roqya ». Il est dès lors autorisé de rémunérer un soignant en contrepartie d’une prestation. Toutefois, cette rémunération doit être raisonnable et surtout clairement définie avant le traitement. En outre, nous ne pouvons que souligner et rappeler que, si la roqya est réalisée dans un cadre sérieux, il convient de procéder à toutes les déclarations administratives. Comme pour tout contrat, vous devez exiger un document écrit et le praticien doit préciser quels sont ses engagements exacts afin d’éviter tout litige postérieur. Malheureusement, tous les témoignages transmis à l’UFCM soulignent que l’interlocuteur insiste à plusieurs reprises sur la gratuité de la prestation. Or, dans les faits, cette dernière est payante puisque le coût de la communication est surtaxé. Ainsi, l’une des victimes qui nous a contacté, s’est retrouvée avec une facture téléphonique (hors forfait) de 1800 euros. Par conséquent, nous constatons que ces « roqyas » gratuites sont fondées sur la technique dite du « call-back » qui consiste à amener une personne à rappeler un numéro surtaxé, information qui lui est bien évidemment dissimulée. Une « roqya » peut être payante à condition de respecter un cadre prédéterminé, fondé sur l’information et la transparence des honoraires. En conclusion A la lumière des développements susvisés, l’UFCM appelle d’une part à une régulation du métier de la pratique de la « roqya », d’autre part, à la vigilance de chacun à ne pas céder à la tentation d’une « roqya » qui ne serait pas réalisée dans les conditions requises et qui pourrait produire des effets inverses. Au-delà du cadre spirituel ou juridique, les divers témoignages reçus et étudiés par l’UFCM ne peuvent pas nous laisser indifférents à la question suivante : pourquoi des personnes sont-elles amenées à accepter aussi facilement une « roqya » par téléphone ? Est-ce la gratuité qui a déterminé leur choix ? Certes le mal-être produit par cette société est de plus en plus grand. Nous vivons une époque où les êtres sont de plus en plus coupés des signes de Dieu et vivent un rythme de vie effréné. Ces affaires sont révélatrices des maux les plus profonds qui touchent la communauté musulmane. Par ailleurs, comme l’ensemble des rites islamiques (hajj, halal, pompes funèbres) censés nous rappeler les limites qui déterminent la voie vers Dieu, nous constatons que leur marchandisation trahit de plus en plus leur vocation première. Suffit-il qu’un interlocuteur se présente à nous comme un « cheikh » ou un imam et qu’il nous propose une « roqya » gratuite pour l’accepter aussitôt Ne devrions-nous pas tous nous interroger sur le fait qu’il y ait des musulmanes et des musulmans aussi isolés et aussi ignorants de leur propre religion pour être trompés aussi facilement ? Sommes-nous devenus si dépendants des Hommes que nous en oublions de nous adresser directement à Dieu pour solutionner nos malaises ? Autant de questions que chacun d’entre nous a la responsabilité de se poser. En effet, aucun de nous ou de nos proches ne sont à l’abri d’une telle tromperie. Il convient enfin de rappeler que la « roqya » est un remède précis et qu’elle ne peut se faire que sous certaines conditions et surtout qu’elle demeure l’exception à la règle, qui est de toujours s’adresser directement à Dieu. Avant de recourir à une « roqya », il convient de faire une introspection sur ses propres pratiques cultuelles et de revenir.

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