Drug use: the severity is not solely linked to the quantity
The Court of Cassation takes stock of the changes introduced by the latest security decree
Regarding narcotics, the concept of habitual conduct – which is required as an element precluding the classification of the offence as minor – requires a pattern of conduct that demonstrates a consistent propensity for criminal activity and is distinct from ‘non-occasional’ conduct, which instead presupposes conduct that is merely episodic, without reaching the degree of repetition and consistency that characterises habitual conduct.
Security Decree
The Court of Cassation has emphasised this, ruling – for the first time – on one of the key provisions of the latest security decree (Decree-Law No. 23 of 2026), which amended Article 73(5) of the Consolidated Law on Narcotics (Presidential Decree No. 309/90), by introducing the provision that ‘the offence shall not be considered minor where, due to the use of means or instruments or the manner in which the act was carried out, the conduct referred to in paragraph 1 is carried out in a continuous and habitual manner’.
The new provision therefore covers two distinct scenarios:
- a minor offence ‘in terms of the means, manner or circumstances of the act, or the nature and quantity of the substances’, punishable by imprisonment for between 6 months and 5 years and a fine of between 1,032 and 10,329 euros;
- the minor offence subject to a more severe penalty, with imprisonment for between 18 months and 5 years and a fine of between 2,500 and 10,329 euros, where the conduct, whilst of a minor nature, is not occasional.
The law, however, excludes the classification as a ‘minor offence’ where the conduct is carried out on a continuous and habitual basis. ‘From the system, therefore,’ the Court of Cassation points out, ‘a progression in the penalty framework can be seen, ranging from an occasional minor offence, to a minor offence aggravated by its non-occasional nature, to a non-minor (and, therefore, “ordinary”) offence because it is continuous and habitual.’
Differences
It is therefore necessary to distinguish between habituality, which excludes minor offences, and non-occasionality, which constitutes a mere aggravating circumstance. In the Court’s view, the distinction between an occasional minor offence, a non-occasional minor offence and an offence characterised by habituality cannot be based solely on a quantitative criterion.
