Visualise a scenario where you are returning to your matrimonial home after a fight with your partner and all of a sudden find that the door locks have been changed and you are now deprived from entering the premises; or else walking down the path to your field and noticing that someone took matters into his own hands, installed a gate and you can no longer reach your field. The concept of people ‘taking the law into their own hands’ or resorting to ‘self-help’ is quite common before our courts of criminal judicature.
This whole notion is more commonly referred to by legal practitioners as the crime of ragion fattasi. The crime of ragion fattasi, or in layman’s terms ‘taking matters into one’s own hands’ was introduced in Malta back in 1842 when the first draft of Criminal Laws was being formulated. In fact, the offence of ragion fattasi has been known to exist for a number of years.
It is worth mentioning that Malta’s legal provision regulating the offence of ragion fattasi was derived from the Neapolitan Code of 1819. In fact, Maltese law regulating this crime differs from that of the Italian Penal Code. The latter requires violence and threats as essential elements of the offence, while the Maltese order does not follow suit in this regard as no violence is to be proven for the offence to subsist. The difference is due to the fact that the sources from which the provision is derived are different.
Back in 1972, Maltese legal jurists had already established the four indispensable elements making up the offence of ragion fattasi.
For an offence of ragion fattasi to transpire, the prosecution is legally bound to prove that an external act performed by the accused deprives another person of a right or a thing which he or she enjoys and such act is carried out in spite of the express or implied opposition of such other person.
It must also be proven beyond reasonable doubt that such external act was performed by the perpetrator in the belief that he or she is exercising his or her right and that he or she is acting rightfully. This belief should be accompanied by the knowledge in the mind of the perpetrator of doing of his or her own authority that which should be done through the lawful authority. Last but not least, it is up to the prosecution to prove that the alleged external act does not constitute a more serious offence.
This was the matter at hand in the case of ‘Il-Pulizija vs Maria Carmela Mallia’ decided by the Court of Criminal Appeal on January 28.
Mallia was charged of having in the exercise of a pretended right, by her own authority, disturbed Ġużeppi Vella from the enjoyment of his possessions.
Malta’s legal provision regulating the offence of ragion fattasi was derived from the Neapolitan Code of 1819
To put things into context, the accused owned a property comprising of a number of apartments. Vella had been renting one of the apartments from Mallia for a number of years. At a point in time, the accused noticed that there was structural damage on the roof of said property at the exact place where Vella’s metal poles and clothes line were situated.
From the evidence produced by the parties, it was ascertained that Mallia had, in fact, consulted with Vella on the matter, to which he gave his consent for the objects to be removed and the works to proceed on the basis that he had not made use of such poles for more than 18 months.
The Court of Appeal delved into the prerequisites which need to be satisfied in order for the act of ragion fattasi to substantiate. The court held that such prerequisites are:
In relation to Mallia’s external act and Vella’s dissent, the court provided that, the accused together with the tenant had discussed this matter whereby the latter claimed that he has not used the metal rods in over a year-and-a-half. This ultimately meant that the accused was not preventing the enjoyment of a right since said poles were not being utilised in the first place. Furthermore, the court propounded that, in fact, Mallia had offered Vella another space on the roof in order to hang his clothes until the work is completed.
The court then delved into the second element which constitutes the belief that the person has a right to commit the particular act. Here it was held that the appellant’s act was indeed done by the tenant’s consent and thus, Mallia’s actions could not be considered to be done without Vella’s knowledge just because she thought she had a right to do so.
The court emphasised that Article 85 of the Criminal Code, regulating the crime of ragion fattasi, is intended to impede a person from taking the law into his/her own hands. The position between co-possessors, as was the case in question, is that all the co-possessors should have equal right of enjoyment, unless it has been provided differently by an agreement between the co-possessors or by an order of a competent authority or a law.
The Court of Appeal, after making the aforementioned considerations, concluded that Mallia’s actions were not performed with the intention to disturb Vella from the enjoyment of his possessions, especially due to the fact that Mallia had consulted with him prior to the removal of the metal poles in question and consequently acquitted the appellant from all charges brought against her.
Rene Darmanin is an associate at Azzopardi, Borg & Abela Advocates.