Usury and Confiscation: Analysis of Judgment No. 16045 of 2023

The recent judgment No. 16045 of 2023 by the Court of Cassation offers an important reflection on the issue of confiscation of profits derived from usurious activities. This decision is part of a complex legal context, where the distinction between civil damage and criminal damage plays a crucial role.

The concept of confiscable profit

The Court has established that confiscable profit, pursuant to art. 644, paragraph six, of the penal code, coincides with the usurious interest actually paid. This means that the actual financial enrichment obtained through illicit conduct is directly linked to the usurious interest perceived by the defendant. The judgment clarifies that, for the purposes of confiscation, the potential omission to return the sums lent as capital is irrelevant.

Confiscable profit - Identification - Criteria - Usurious interest actually paid - Omission to return to the agent the sums lent as capital - Irrelevance. In the matter of usury, the confiscable profit pursuant to art. 644, paragraph six, of the penal code, identifying itself, in accordance with the general notion of profit from the crime, in the actual financial enrichment achieved, in a relationship of immediate and direct causal derivation from the illicit conduct, coincides with the usurious interest actually paid. (Case in which the Court, in application of this principle, held that, based on the distinction between civil damage and criminal damage, it was possible to subject to preventive seizure aimed at confiscation the sums actually received by the defendant as interest, the aspect of the omission to return the sums lent as capital remaining irrelevant for this purpose).

Legal implications of the judgment

This judgment has several legal implications, not only for cases of usury but also for the management of profits derived from illicit activities. In particular, the Court has highlighted the distinction between civil damage and criminal damage, establishing that confiscation can also be applied independently of the return of the sums lent as capital. This represents a clear change compared to some previous interpretations, where restitution was seen as a fundamental element.

• Confiscable profit is directly linked to usurious interest.
• Confiscation can occur even without the return of sums as capital.
• The Court reiterates the importance of the distinction between civil damage and criminal damage.

Conclusions

In conclusion, judgment No. 16045 of 2023 offers an important clarification on the confiscation of profits derived from usury, reaffirming the centrality of usurious interest in the assessment of confiscable profit. This jurisprudential trend could have a significant impact on the fight against usury, making the possibility of recovering illicit profits more effective and, consequently, protecting vulnerable individuals from predatory practices.