In judgment no. 32649/2026, filed on 2 September 2026, the Sixth Criminal Division of the Italian Supreme Court addressed one of the first interpretative questions arising from the new wording of Article 73(5) of Presidential Decree no. 309/1990, as amended by Decree-Law no. 23/2026, converted by Law no. 54/2026.

The amendment introduced a specific bar to classification as a minor-gravity offence where, because of the preparation of means or instruments or the manner of action, the conduct is carried out continuously and habitually.

The Supreme Court identified a progression between three different situations: an occasional minor-gravity offence, a non-occasional minor-gravity offence, and conduct characterised by continuity and habituality, which prevents application of the minor-gravity provision altogether.

The most important point is the distinction between non-occasional conduct and habitual conduct. That distinction cannot be based on a merely numerical criterion. Repetition is certainly relevant, but a global assessment of the concrete case remains necessary.

An occasional act is episodic and linked to contingent circumstances without forming part of an activity stably directed at drug dealing. For that reason, even a prior conviction for a similar offence does not automatically exclude occasionality, particularly where it is remote or arose in a wholly different context.

Non-occasional conduct occupies an intermediate position: it is not merely episodic but does not yet reach the degree of repetition and stability characteristic of habituality. A prior similar offence is only one of the factors that may be considered.

Habituality is more demanding. It requires a higher degree of repetition and a serial pattern capable of revealing a stable propensity towards criminal activity. The assessment is substantive rather than arithmetical.

In the case examined, police seized fifteen pre-packaged wraps of cocaine and 213 grams of cocaine in rock form. The courts also relied on precision scales, the absence of lawful income, a prior similar offence and, above all, the suspect’s admission that he had previously supplied a small number of regular customers.

The Supreme Court declared the appeal inadmissible, considering that the overall evidence showed concrete, non-episodic involvement in drug dealing.

The decision is particularly important for the defence because it confirms that the new statutory bar cannot be applied automatically. Multiple episodes, a prior similar offence or other indicators of repetition do not, taken alone, establish habituality. The court must verify whether the evidence as a whole demonstrates the seriality and stability required by the provision.

Italian Supreme Court, Criminal Division VI, judgment no. 32649/2026, hearing 10 July 2026, filed 2 September 2026.

Official source: Italian Supreme Court.
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