The arbitrary exercise of one's own rights concerns anyone who attempts to obtain by force what they believe is owed to them, instead of turning to a judge. This may happen during the recovery of a debt, the return of an asset, a real estate dispute, or a conflict between individuals bound by prior agreements. If you are under investigation, you might wonder whether the existence of a right excludes the offense, whether a heated remark constitutes a threat, or why the prosecution is alleging the more serious crime of extortion.
I will explain which elements distinguish these situations, what Articles 392 and 393 of the criminal code provide, and which facts truly affect the legal classification. I also want to help you understand the role of the criminal complaint, restorative conduct, and evidence that can support a criminal defense in Milan.
When the Offense of Arbitrary Exercise Arises
Having a claim does not authorize the use of force. The offense may materialize when a person, being able to request protection from a judge, decides to take justice into their own hands through damage to property or violence or threats against persons. The rule thus also protects the public interest in preventing private conflicts from being resolved through forms of personal coercion.
The claim must have a legal nature. It must concern a right that, at least in the abstract, could be enforced before a judge: for example, the payment of a debt, the return of an asset, or the eviction from a property. A personal desire, a grudge, or the intent to punish someone who behaved in a perceived unfair manner is not sufficient.
The right does not necessarily have to prove well-founded at the end of the dispute. However, it is necessary that the person acting has a reasonable, not purely pretextual, belief in being able to put forward that specific request. Contracts, invoices, messages, receipts, and prior agreements can clarify where the claim originated and what the interested party believed they were entitled to obtain.
The text of Articles 392 and 393 can be consulted in the current text of the criminal code on Normattiva.
Damage to Property and Threats to Persons
Article 392 and Damage to Property
Article 392 concerns property. Violence occurs when the asset is damaged, transformed, or destined for a different use. Depending on the circumstances, changing a lock, removing an obstacle, disconnecting a system, or taking an action that prevents the previous user from utilizing the asset may assume relevance.
It is not necessary to destroy the asset. Even a functional alteration may be sufficient. The provision also includes the alteration, modification, or deletion of computer programs and the hindrance or disruption of the functioning of computer or telecommunications systems. The offense is punishable, upon complaint by the injured party, with the fine provided for by the rule.
Article 393 and Violence or Threats to Persons
Article 393 concerns pressure exerted on a person. The conduct may consist of physical contact or the representation of harm capable of conditioning the victim's freedom. The threat does not necessarily have to be formulated with explicit words: tone, gestures, and context can also impart an intimidating meaning to a phrase.
The result does not need to be achieved. The offense can be consummated through the use of violence or threats aimed at arbitrarily satisfying the claim, even if the victim does not pay or deliver the asset. Article 393 provides for imprisonment of up to one year; if the act also includes damage to property, the pecuniary penalty provided for is added, while the use of weapons entails an increase in punishment.
The Decisive Distinction Between Arbitrary Exercise and Extortion
The boundary with extortion depends primarily on the purpose. In arbitrary exercise, the actor reasonably believes they are enforcing a right of their own that can be enforced in court. In extortion, however, they seek a profit knowing that they are not entitled to it. The difference produces very significant consequences, because extortion is punished much more severely and has a different procedural regime.
Intense violence does not automatically transform the act into extortion. Its gravity, however, can become an element from which to reconstruct the actor's real intent, especially if the conduct appears disconnected from the content of the claim. The United Sections clarified these criteria in ruling no. 29541 of July 16, 2020, illustrated in the 2020 Criminal Review of the Court of Cassation.
The request must correspond to the claimed right. If a person believes they hold a credit and demands precisely that performance, the issue of Article 393 may arise. If they add fabricated sums, impose extraneous advantages, or use the credit as a mere pretext to obtain something else, the risk that the act is classified as extortion increases.
Who exerts the pressure also matters. The holder of the claim may involve a third party, but the latter must act solely to enforce another person's right and upon the holder's instruction. If they pursue their own profit, receive compensation linked to the coercion, or act autonomously, the more serious hypothesis of extortion may emerge. The principle is also recalled by the ruling of the Court of Cassation no. 30016 of 2024.
Facts That Guide the Defense
The first point is the origin of the claim. A contract, an order, a receipt, or an exchange of messages can show that the suspect genuinely believed a credit or right to restitution existed. The document, however, does not justify coercion: it serves to distinguish a legal claim, perhaps unfounded, from a knowingly unjust request.
The second point is the content of the request. One must compare what could be asked of a judge with what was concretely demanded. If the two performances coincide, classification as arbitrary exercise may find room. If the pressure aims to obtain money, goods, or additional behaviors, the picture changes significantly.
The third point is the meaning of the conduct. An isolated phrase must be read together with preceding and subsequent words, the relationship between the individuals, and the gestures performed. A harsh expression is not always a criminally relevant threat; conversely, seemingly neutral words can be intimidating when they recall concrete and understandable consequences to the victim.
The fourth point concerns any concurrent offenses. Injury, property damage, carrying weapons, or other conduct may maintain independent relevance. The Court of Cassation has clarified that, under certain conditions, property damage can be absorbed by Article 393 aggravated by damage to property; if the action is disproportionate compared to the enforcement of the claimed right, a concurrence of offenses may instead materialize. The criterion is reported in the Criminal Review of the Court of Cassation for July 2024.
Complaint, Remission, and Reparation of Damage
Articles 392 and 393 are prosecuted upon complaint. Generally speaking, the injured party must express the will to proceed within three months from the day they became aware of the fact. The date, content, origin, and timeliness of the complaint must be checked with precision, without confusing it with a simple informative report.
Remission can close the proceedings for the offense prosecutable upon complaint, if it is validly formulated and not rejected. However, it does not extinguish any ex officio offenses contested together with the arbitrary exercise. An agreement between individuals, therefore, does not alone allow one to know whether the entire proceeding will end.
Reparation does not automatically equal acquittal. Returning the asset, compensating for the damage, or eliminating the consequences can favor remission and affect the overall evaluation. In offenses prosecutable upon complaint subject to remission, Article 162-ter of the criminal code also allows, under the conditions and within the times established by law, extinction due to fully performed restorative conduct.
Possible Lines of Defense
A first line concerns the absence of conduct. Complete recordings, non-fragmentary conversations, testimonies, and objective data can refute violence, clarify the meaning of words, or exclude that the suspect participated in the fact. The reconstruction must respect the entire sequence of events, not just the most contentious moment.
A second line concerns the mental element. If pressure is proven, it becomes essential to establish what result the suspect wanted to obtain and on what basis they believed they had a right to it. This analysis can support the application of Articles 392 or 393 in place of extortion, but it does not automatically cancel the arbitrary nature of the conduct.
A third possibility is restorative resolution. When facts and relationships between individuals permit, restitution, compensation, remission of the complaint, or access to restorative justice programs can be considered. These are distinct pathways: each has its own prerequisites and effects and must not turn into additional pressure on the injured party.
The procedural ritual also requires a concrete choice. Request for dismissal, abbreviated trial, negotiated application of penalty, probation (messa alla prova), or trial respond to different situations. Before choosing, I consider the contested classification, available evidence, any connected offenses, and the result that can be legitimately pursued.
Frequently Asked Questions
If the credit exists, can I still be convicted?
Yes, the credit does not authorize coercion. Its existence can support classification as arbitrary exercise rather than extortion, but it remains necessary to verify whether you used violence or threats and whether you could have requested protection from a judge. It also matters that the demanded performance corresponds to the claimed right.
Does a phrase spoken during an argument always constitute a threat?
No, the concrete meaning matters. Words must be evaluated together with tone, gestures, context, and relationships between individuals. A generic phrase may lack intimidating capacity; a seemingly indirect expression may instead present recognizable harm and condition the injured party's freedom.
What is the main difference compared to extortion?
The central difference is the purpose. In arbitrary exercise, the actor reasonably believes they are enforcing a right that could be enforced in court. In extortion, they know they are pursuing an unjust profit. The intensity of the threat can be an important clue, but it does not replace the ascertainment of the concrete purpose.
Does the remission of the complaint always close the proceedings?
Not necessarily the entire proceeding. Remission validly rendered can extinguish the offense prosecutable upon complaint if it is not rejected. However, injuries, weapons, property damage, or other contested facts remain to be considered: if they are prosecuted ex officio, the judicial authority continues to handle them even after the agreement.
Does compensating for the damage make the offense go away?
Compensation does not automatically cancel the fact. It can favor remission, affect sentencing, or, if all requirements of Article 162-ter are met, lead to extinction due to restorative conduct. Timing, completeness of reparation, and any connected offenses must be verified before attributing a specific effect to it.
Planning Criminal Defense in Milan
The allegation must be tackled from the early stages. The notice received indicates the hypothesized offense, but the classification can change after examining the facts. Contracts, receipts, complete conversations, and data on economic relationships help clarify both the existence of the claim and the meaning of the conduct.
If you are involved in proceedings for the arbitrary exercise of one's own rights in Milan, you can contact me to understand the accusation, preserve useful elements, and evaluate with my staff the defense strategy consistent with your situation.