The crime of arbitrary exercise of pretended rights, also referred to as Ragion Fattasi in layman’s terms and is provided for under Article 85 of Chapter 9 of the Laws of Malta.

A typical scenario occurs when an individual acts based on a perceived right, though they lack legitimate entitlement. A familiar instance is when one spouse alters the locks of the matrimonial residence, ostensibly to bar the other spouse's entry. While there might be genuine motives such as self-protection or safety, none justify the act, as both spouses possess legal rights to access and enjoy the marital home. The offense lies in the spouse's manipulation of their assumed or fictional entitlement to obstruct the other spouse's entry.

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Following a conviction for this offence, the perpetrator may face imprisonment lasting from one to three months. Nevertheless, the criminal courts retain the discretion to impose a fine multa instead of incarceration.

The pivotal characteristic of this offence lies in the absence of mens rea (malicious intent) on the part of the perpetrator to steal or inflict any wrongful harm. Instead, the action is carried out solely under the guise of a presumed entitlement. Therefore, the defining features of this crime include the victim's pursuit of rights ex officio and the non-serious nature of the offence.

The offence of Ragion Fattasi constitutes four elements which were established in the case of Pulizija vs Giuseppa Bonavia, which are as follows:

1. The material element: the external act depriving another person of a right over a thing which he enjoys, committed despite opposition, express or implied of that other person. In cases where the agent (offender) acts via any form of violence or force against the other person, (rather than solely to protect or exercise their pretend right) would constitute a more serious offence; a crime against the person, and not ragion fattasi. If the agent committed the act out of necessity to defend their own possession or right, rather than to disturb the rights of others, than that action does not constitute the crime of ragion fattasi.2
2. The formal element: the belief on the part of the agent of doing such action in the exercise of a pretend right. This offence requires the specific intent of acting to exercise a pretend right. The belief that the agent truly possesses the right is an essential pre-requisite and must be the only motive for this offence.
3. The consciousness on the part of the agent of doing of his own authority that which should have been done through a lawful authority (such as the courts). The agent knows that he has no right and is using the judicial authority to exercise such a right they know is pretended. However, at the same time, ignorantia juris non excusat (ignorance of the law is not excusable). It is one’s duty to know the law and any plea stating otherwise would be declared null by the criminal courts.
4. The offence will only subsist when there is the absence of a more serious offence. If for instance, the agent in order to exercise their assumed right, causes physical violence to the person, then that would constitute a crime against the person.

These pre-requisites must all be present in the execution of the offence and the lack thereof would forfeit the charges. In the case of Pulizija vs John Azzopardi, the accused was charged with exercising a pretended right on his own authority by interrupting the enjoyment and possession of the owner of the thing. In fact, he entered without malicious intent/motive. However, the accused did not fulfil all 4 requisites and consequently was found not guilty under Article 85 of chapter 9 of the Laws of Malta.

It's crucial to remember that any action taken against another individual must be initiated with appropriate legal authorization, such as through the intervention of the Police or the Courts of Malta.

For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella.