An accusation of usury requires a precise reconstruction of the economic relationship. If you receive a summons, a notice of investigation or a notice of conclusion of preliminary investigations in Milan, it can be difficult to understand whether the issue concerns an interest rate, a commission, a guarantee requested from the debtor or a loan between acquaintances. A high interest rate does not automatically prove the crime, but neither does the name given to a payment suffice to exclude it.
In this page I want to clarify what elements the prosecution must prove, why the analysis changes between bank financing and private loans, and what facts can radically alter the reading of a transaction. We will also see what matters in the investigation phase and why documents, money movements and dates of agreements must be read as parts of a single relationship.
When a Credit Relationship Can Constitute Usury
Usury does not coincide with an expensive debt or a contested payment. Article 644 of the criminal code concerns anyone who obtains, or has promised, usurious interest or other benefits as consideration for giving money or other utility. The same provision also considers anyone who procures money or utilities obtaining usurious compensation for their mediation. The central point is therefore the connection between the requested advantage and the financing or intermediation activity. Article 644 of the criminal code.
The promise may be relevant even before payment. It is not strictly necessary for all expected sums to have already been collected. An agreement, even an informal one, can take on importance if it shows that the money was granted against the promise of interest or additional benefits. For this reason, bank transfers, checks, receipts, messages and private agreements do not have an automatic meaning: it is necessary to understand which agreement they document and to which sum they refer.
The declared purpose does not resolve the problem on its own. An item indicated as consulting, commission, expense reimbursement or penalty does not become irrelevant for that reason. If that payment is actually the price requested to make money available, it can be included in the analysis of the transaction. Conversely, a return of capital or an expense actually incurred and documented does not automatically turn into interest. The concrete content of the relationship counts, not just the label used by the parties.
The consequences can also concern assets and economic advantages. Article 644 provides, in the event of conviction or the application of the penalty upon request, for the confiscation of the price or profit of the crime and, within the limits indicated by the rule, of sums, assets or utilities in the availability of the offender. For this reason, a charge of usury should not be reduced to a mere discussion of a percentage: it is necessary to distinguish the capital actually lent from the interest, compensation and additional benefits that the prosecution considers usurious.
Bank Financing: Threshold Rate, Costs and Date of the Agreement
In bank financing, comparison with the threshold rate is often decisive. The law establishes a limit beyond which interest is always usurious. The parameter stems from the average global effective rate provided for the category of operations to which the credit belongs; the limit is formed by increasing this rate by a quarter and adding four percentage points, without the difference between the limit and the average rate exceeding eight percentage points. Legal criterion for determining the limit.
There is no single threshold for any financing. The comparison must start from the correct category of the relationship. Mortgage, current account overdraft, personal loan, leasing or salary-backed loan have different structures and parameters. It is therefore not enough to take a generic percentage or compare the contract to an operation that is only apparently similar. Duration, amount, guarantees and methods of using the credit affect the classification upon which the comparison parameter depends.
The nominal rate does not exhaust the cost of credit. Article 644 establishes that, in determining the relevant rate, commissions, remuneration under any title and expenses connected with the disbursement of credit are considered, while taxes and duties remain excluded. However, this does not authorize an indistinguishable sum of every charge. It must be established whether an item is actually connected to the financing, when it matures and what economic function it performs. Rules on relevant cost items in article 644.
The date of the agreement can change the applicable parameter. For original usury, the verification concerns the moment in which the interest is promised or otherwise agreed upon, not the day of the last payment or the one in which the dispute arises. If the relationship has been renegotiated, if new credit lines have been agreed upon, or if a subsequent agreement has modified rates and charges, each agreement must be distinguished from the other. Article 1 of decree-law no. 394 of 2000, converted by law no. 24 of 2001.
A calculation is only useful if it explains its basis. A percentage indicated in a report or prospectus is not self-sufficient. It must be clear which capital it considers, which charges it includes, which formula it uses, which category of financing it takes as a reference, and which agreement date it assumes. If any of these steps is incorrect, the final result may appear precise but be based on non-homogeneous data.
Loans Between Private Individuals and Disproportionate Benefits
A loan between private individuals can fall under criminal law. The absence of a bank, a standardized contract or an amortization schedule does not exclude the application of Article 644. In personal relationships, however, the content of the agreement is often more difficult to reconstruct. A delivered sum can be an interest-free loan, a return, a commercial advance, family help or the capital of a remunerated financing: these are different situations that cannot be confused.
The numerical threshold is not the only criterion provided by law. Article 644 also considers usurious interests, advantages or compensation lower than the legal limit when they are disproportionate to the money, the granted utility or the mediation work, taking into account the concrete modalities of the fact and the average rates for similar operations. In this hypothesis, the condition of economic or financial difficulty of the person who gave or promised the advantage is also necessary.
Economic difficulty does not coincide with a generic need for liquidity. The rule requires an additional element beyond the simple need for money. It is necessary to distinguish a person facing a deadline or a momentary lack of availability from a condition of economically significant difficulty in the context of the operation. At the same time, disproportion cannot be asserted intuitively: it must be connected to the service received, the agreed conditions and the concrete modalities of the relationship.
A real estate or corporate guarantee requires a separate examination. The request for a property, corporate shares or holdings does not automatically prove that the loan is usurious. However, it can take on relevance to understand the effective weight of the agreement and the balance between the granted credit and the requested benefits. Article 644 also provides for an increase in penalty when corporate shares, company stakes or real estate properties are requested as guarantees. The real function of the guarantee must therefore be distinguished from the advantage that the prosecution considers as consideration for the money.
Mediation, Commissions and Relationships with Multiple Parties
The role of the mediator is not neutral by definition. Article 644 also takes into consideration anyone who procures money or another utility for someone and obtains usurious compensation for the mediation. Compensation for an intermediation activity is not illicit in itself, but it must be read together with the financing that made it possible to obtain. If it is imposed as a condition to receive money and is added to interest or other charges, its meaning can become central.
The service performed must be distinguishable from the cost of the loan. A mandate, an invoice or a bank description can indicate that a mediation activity took place, but they do not eliminate on their own the need to understand how the operation was constructed. The service concretely rendered, the moment in which the compensation was requested, the subject who receives it and the connection with the availability of the money become important.
The reconstruction must avoid incompatible explanations. If the dispute involves multiple people, it is not sufficient to deny every relationship entirely. It may be necessary to separate who provided the sum, who negotiated the agreement, who received payments and who performed additional activities. An effective defensive reconstruction does not replace one label with another: it clarifies which facts are documented, which payments are connected to the credit and which, instead, derive from an autonomous relationship.
Preliminary Investigations and Defense Rights
An act received during investigations does not equal a conviction. The hypothesis of a crime may initially be built on the basis of complaints, statements, bank movements or partial documents. In a matter where dates, amounts and descriptions carry significant weight, hasty responses can consolidate an incomplete reading of the relationship. It is important to understand first what form of usury is contested: exceeding the threshold, disproportionate advantage below the threshold, mediation or multiple connected conducts.
The notice of conclusion of investigations opens specific rights. If the public prosecutor does not request dismissal, article 415-bis of the code of criminal procedure provides for the notification of the notice to the person subject to investigations and to the defense counsel. The act contains the statement of the fact and makes the documentation of the investigations available; within twenty days the suspect can submit briefs and documents, request investigation acts or make statements and ask to be interrogated. Article 415-bis of the code of criminal procedure.
The defensive choice depends on the concrete dispute. If the prosecution is based on exceeding the threshold rate, the point may concern the category of the operation, the date of the agreement, the financed capital and the computed costs. If the fact instead concerns a private loan below the threshold, the effective agreement, the requested advantage, the disproportion and the economic condition of the financed person assume relevance. The two paths do not overlap and cannot be addressed with a single abstract calculation.
Documents and Alternatives to Consider
Documents serve to follow the relationship over time. In bank financing, contracts, economic conditions, bank statements, repayment plans, modification communications and receipts can clarify the picture. In private loans, bank transfers, checks, receipts, writings and conversations that show the reason for each transfer can be important. An isolated document rarely resolves the issue: it is the coherence between delivered money, requested sums and deadlines that makes a reconstruction verifiable.
Technical consultancy has value if it addresses a precise question. Accounting analysis can help reconstruct the effective cost of a credit and verify which items were considered. However, it cannot turn an agreement that does not emerge from the available evidence into a certainty. Before relying on a numerical prospectus, it is necessary to ascertain which period it analyzes, which starting data it uses, and whether it distinguishes taxes from costs connected to the credit.
Contesting usury does not require denying the existence of the debt. In some cases the point is to demonstrate that a payment was a return of capital or fulfillment of a different obligation; in others, that the agreement did not have the content attributed by the prosecution. The alternatives change based on existing documents. To prepare an initial discussion, it is useful to gather the received act, available agreements, money movements and communications that place payment requests in time.
Frequently Asked Questions
Does a high rate alone prove the crime of usury?
No, a rate perceived as high is not enough. In above-threshold financing, it is necessary to compare the relevant cost of the credit with the limit applicable to the category and the date of the agreement. In the below-threshold hypothesis, the disproportion of the advantage, the concrete modalities of the fact, and the economic or financial difficulty of the person who gave or promised that advantage are also needed.
Must commissions and expenses always be added to interest?
Costs connected to the disbursement of credit are relevant. Article 644 includes commissions, remuneration and expenses connected with the financing, excluding taxes and duties. However, it is incorrect to add every charge without verifying its nature and function. The calculation must explain which items it considers, why they are connected to the credit and at what moment they mature.
Does the threshold rate of the day a payment installment is made count?
For original usury, the moment of the agreement is relevant. Article 1 of decree-law no. 394 of 2000 links the verification to the moment in which the interests are promised or agreed upon, regardless of payment. If the relationship is renegotiated or modified by a subsequent agreement, however, that new agreement must be distinguished from the initial contract.
Can I be accused of usury for a loan to an acquaintance?
Yes, the private nature of the relationship does not exclude the crime. The rule does not require the lender to be a bank. In private loans, proofs regarding the agreement, actually delivered sums and the reason for additional payments often become decisive. Personal help, capital return and financing with usurious advantages remain different offenses.
What can I do after the notice of conclusion of investigations?
The notice opens defensive rights within twenty days. Through defense counsel you can review the deposited acts, submit briefs and documents, request investigation acts or make statements and ask to be interrogated. The choice must depend on the contested fact and the elements already gathered, not just the indication of the crime in the notice.
An Initial Approach to Defense for Usury
The first useful distinction is between the cost of credit and the effectively requested advantage. Agreement date, delivered amount, sums requested in restitution, guarantees, involved subjects and available documents allow understanding whether the dispute concerns a threshold calculation, a disproportionate private relationship or mediation. If you have received an act relating to an accusation of usury in Milan, you can contact me to evaluate the meaning of the elements that have already emerged and the rights provided in the procedural phase.