Non-occasionality as an Aggravating Circumstance in Drug Trafficking: Commentary on Judgment No. 14220/2025

The Court of Cassation – Third Criminal Section – revisits the debated boundary between aggravating circumstances and minor offences in matters of narcotic substances. With judgment No. 14220 of February 25, 2025 (filed April 11, 2025), which rejected the appeal of the defendant D. T., the supreme judges reiterate that the non-occasionality of the conduct has a dual value: on the one hand, it constitutes the special aggravating circumstance referred to in art. 73, paragraph 5, second period, of Presidential Decree 309/1990; on the other hand, it constitutes an obstacle to the recognition of minor offence under art. 73, paragraph 5, first period.

The Core of the Decision

The Supreme Court, upholding the ruling of the Court of Appeal of L'Aquila (May 20, 2024), denied the applicability of the minor offence by observing that the cocaine dealing activity had continued over time, with organized methods and stable supply channels. This operational continuity, defined as non-occasional, automatically triggers the aggravating circumstance introduced by Decree-Law 123/2023, converted into Law 159/2023, and, in parallel, excludes the penalty reduction provided for cases of lesser social alarm.

In matters of narcotic substances, the non-occasionality of the conduct constitutes, at the same time, a specialising element that integrates the aggravating circumstance referred to in art. 73, paragraph 5, second period, of Presidential Decree of October 9, 1990, No. 309, introduced by art. 4, paragraph 3, of Decree-Law of September 15, 2023, No. 123, converted, with amendments, by Law of November 13, 2023, No. 159, and a factor that contributes, along with others, to excluding the minor nature of the act.

The maxim, crystallised in the database Rv. 287869-01, highlights how the 2023 reform codified a jurisprudential practice that had already emerged (Sez. U, No. 13681/2016; Sez. 3, No. 13982/2018). Non-occasionality, therefore, is no longer just a discretionary parameter for the judge, but a legal criterion that rigidifies the assessment of merit.

Non-Occasionality: Indicative Factors

• Multiple instances of dealing or possession for the purpose of dealing;
• Stable organisation of means and places (e.g., use of dedicated phones, logistical bases);
• Flexibility and continuity of drug supply channels;
• Non-marginal profit relative to the quantity handled.

According to the Court, proof of just one of these indicators, if clearly significant, may be sufficient to qualify the conduct as non-occasional. This responds to the rationale of repressing forms of structured micro-trafficking which, although quantitatively limited, fuel local markets with tangible social effects.

Procedural and Strategic Implications

For the defence, it becomes a priority to demonstrate circumstances that attest to the extemporaneousness of the episode: absence of stable relationships with suppliers, modest profit, predominant personal consumption. Conversely, the prosecution can focus investigations on chats, prolonged surveillance, and repeated seizures to prove operational continuity, thus raising the statutory range from 2-6 years (minor offence) to 3-8 years, in addition to the increase of up to one-third for the aggravating circumstance.

The connection with EU Directive 2017/2103, which requires Member States to ensure effective penalties for organised drug dealing, should not be overlooked. The judgment under comment aligns with the need to harmonise protection levels, increasing the punitive response when the offence exceeds the merely episodic threshold.

Conclusions

Judgment No. 14220/2025 consolidates a trend that restricts the scope of minor offences, shifting the centre of gravity of the assessment to criminal planning. For lawyers and legal professionals, it is crucial to identify, from the very first stages, the elements of non-occasionality: a single detail can mean the difference between a significantly reduced penalty and the application of the aggravating circumstance with much more severe penalties.