Arbitrary exercise of one's own rights: Supreme Court no. 10357/2025 defines the boundary between consummation and attempt

Not always does someone who uses violence or threats to assert a supposed right manage to obtain the desired asset. But when does the action truly constitute the crime of arbitrary exercise of one's own rights under articles 392-393 of the Italian Criminal Code, and when, instead, does it stop at the attempt punishable under article 56 of the Italian Criminal Code? The Court of Cassation, with judgment no. 10357 filed on March 14, 2025, returns to the topic and annuls with referral a decision by the Court of Appeal of Bari which had considered the crime already consummated. Let's see why the Supreme Court considered the "event" decisive and what operational implications arise for lawyers and legal professionals.

The facts and legal issues

The case concerns T. P.M., accused of demanding money with threats that he believed was owed to him. The victim resisted, and the money was not handed over. Despite this, the territorial court convicted the defendant for the consummated crime. The Court of Cassation, adopting an established jurisprudential line (see Cass. 4456/2008; 29260/2018), instead emphasized the nature of the arbitrary exercise of one's own rights as a "crime of event": it is necessary for the violent or threatening conduct to produce the obtaining of the asset.

The crime of arbitrary exercise of one's own rights, being a crime of event, is consummated when the perpetrator obtains the claimed asset through violence or threat, so that the attempt is configured when the conduct is not followed by the achievement of the pursued goal. (In this case, the Court annulled with referral the judgment that considered the crime consummated despite the perpetrator not having succeeded in obtaining the delivery of a sum of money owed to him due to the resistance of the holder).

In other words: what matters is not only the aggressive modus operandi, but the concrete result. If the asset does not change hands, the crime remains at the stage of attempt, with lighter penalties (reduction from one-third to one-half) and the possibility of applying, in particular cases, article 131-bis of the Italian Criminal Code on minor offenses.

Constituent elements according to the Supreme Court

• Active subject: anyone, including the creditor actually entitled to the asset.
• Conduct: violence or threat, physical or moral, aimed at forcing the victim.
• Event: actual acquisition of the asset; without this transfer, the event is absent.
• Causal link: the violence or threat must cause the delivery.
• Specific intent: aimed at "getting one's own way" by bypassing the judicial authority.

For the Court of Cassation, the moment of consummation coincides with the event, a principle founded on article 25 of the Constitution (specificity and determinacy) and article 7 of the ECHR (criminal legality). Attributing consummation to mere threat would excessively broaden the scope of the criminal norm.

Procedural aspects and practical impacts

The decision is also relevant on a probative level: it will be up to the prosecution to prove not only the conduct but also the success of the coercive action. In its absence, the charge must be reclassified as an attempt, with effects on the penalty, on the possibility of proceeding, and, not least, on the statute of limitations. However, be careful: the attempt remains incompatible with the mitigating circumstances provided for by article 393, paragraph 2, of the Italian Criminal Code (commission in a "state of anger"), because the offense is autonomous and still requires the event.

Conclusions

Judgment 10357/2025 consolidates an orientation that favors the principle of offensiveness: the crime is fully realized only if the violation of the legal interest (the administration of justice) materializes in the forced appropriation of the asset. For professionals, this means carefully assessing the evidence before qualifying the conduct as consummated or attempted, with significant implications for defense strategy, compensation claims, and any agreements during preliminary investigations.