A consolidated traditional crime, which has been in use since Mediaeval times (or even before) (1) , and which has never shown signs of waning, even in the face of negative market trends.. The usurer prospers because he exploits the financial difficulty and needs of the victims, their lack of access to credit and their frictional relations with traditional financers. . A crime, but, above all, a social phenomenon; macroeconomic and microeconomic together, which can touch everybody, especially the weaker sections of the population, and today, sadly, almost half of the small and medium business enterprises – craftsmen and commercial – of our Country.. Upon enquiring into the present situation, with the last available data – necessarily conditioned by the approximation given to the estimation on the crimes of such fact – one cannot but add to the economic treatment (that which the write feels is predominant), the legal-legislative factor. In fact, while the response of the State on the side of repression does not seem to mark time, it must disentangle from the difficulties created by constantly updated legislation, in relation to the peculiar configuration of the crime "de quo". In our opinion, therefore, a dangerous mixture is verified, not only between criminal and legal economy, while this last contains in itself cause and effect of the usurious phenomenon, but also between crimes equally offensive which are treated by the Legislator on different levels and not always convergent in terms of contrast and prevention techniques. The emblematic case, which we shall take up in the continuation, is that of the relation between recycling and usury, which has become “deadly” over time, but where the interpretation (more than the regulations apparatus) leaves, frankly, too much space for improvisation.(Photo Ansa)

The phenomenon of usury:
the so-called “economic” problematic

In the analysis of financial crimes, the writer (2) always prefers to start from the factual data, which is – undoubtedly – the economic impact that these crimes have on the system.
Perhaps, it is simplistic, but we believe useful, to summarize the pathogenesis of the phenomenon in the so-called “over indebtedness” (above all, of the families) and in the asymmetry which is often present in the allocation systems of credit. Without difficulty, we assume that they are the real “genes” of the usury in our Country, even though it seems that beyond our borders, these things are no different.
It must be clear and necessarily prodromic to the following analysis, the intention to dissect the question in order to glimpse the operational aspects, envisage solutions (if possible) without sparing criticism for both the principal protagonists of the credit system (the giver and the taker of money). Because, if a phenomenon like usury prospers, some wheel in the gears that feeds the credit circuit is necessarily jammed, or tends too easily to come off its track. The economy, one can say what one will, has iron rules and their sensitivity to violations is more than proportional to the relative importance of same (3) .
If usury has managed to create and feed a real “parallel market” of the credit, this derives from the co-presence of subjects with financial resources (it is unimportant whether legally or illegally acquired) and others, who have need of money, just as it occurs on the official market (4) . The fundamental difference lies in the “cost” of this availability, much higher than the official one, since it must go to remunerate a higher “credit risk”, but also of the actual performance of illegal activities, which is subject to potential investigation and, it seems hardly credible “a cost of the borrowing” a little difficult to define, but it exists.
The usurer must procure the resources to “employ”, and the level of the price – where it is envisaged – is commensurate with the degree of risk which he – or who on his behalf – runs in this phase. In very few cases, at least nowadays, are the origins legal, given that the channel of the credit to usury is utilized to recycle funds of illicit provenance. One deal, double profit (5) .
The credit risk (6) even though reduced to a minimum by the intimidatory activities exercised on the borrower, it exists and remains, and even much stronger where the unfortunate person is loaded with more than he is able to sustain and finds himself in the situation to give what he has at devalued prices, with respect to what he has to repay; or, but as we shall see, the case occurs, unfortunately infrequently, that in desperation, the borrower reports the usurer, ending – but perhaps not always in a way that eliminates unpleasant consequences – payment of sums that are untenable or unavailable.
Let us say that these two “risks” for the usurer are able, as far as it results up to now, to be mitigate, from a “balance” viewpoint, which would stand up to any rule of sound company administration. The usurer, like the recycler, is a “technician”; to anticipate the times of response of the institutions with always new “work instruments”. It is, to say it in the fashionable language of the Financial regulations, to be “compliant” with the rules of the wise bankers and financers. One thinks of the usury via Internet, or of the utilization of sophisticated architecture of evasion, which is no longer founded only on money, but on the signing over of goods, transfer of stock or shares, security transactions, cession of economic activities.
Returning to the causes that lead to usury or, at least, to those which are commonly held to be the most “reliable”, the so-called “over-indebtedness” of the families (7) , has, in these years, gradually assumed a preponderant weight. In the opinion of the writer, a non-secondary element of this pathology on the credit market is the contribution given by the dangerous mix that is created between “forced” modification (8) of the consumer tendencies and level of available income. What we can define as the “consumer culture” is, in our opinion, very particular in our Country, about to become increasingly fundamental to the expansion of usury. One cannot totally agree with the studies - even though authoritative – which fix in the variations of the cost of the indebtedness and in the difficulty of access to credit, the only reason for recourse to “loan shark” credit. We shall speak of this further on, but as was mentioned at the beginning of this article, it is obligatory to clarify the conduct, expected and perceived, which the actors of the legal market must (not “should”!) follow to “pull the rug from under” the extortion criminality. These are words which risk being rhetorical, but the State must find, more than ever in this sector, the help of the citizen and of those with whom he relates when in need of economic assistance.
It would be like saying that the recent financial earthquakes which have hit the world markets are to be debited only and exclusively to the intermediaries, to the vigilant institutions (certainly, to a prevalent and very guilty extent!) as if the contracts at the base of the choice of investment of damaged savers had been “imposed” with the force of the banks (9) .
In other words, leaping to get that elevated and easy return, i.e. as in the matter under discussion, to the indebtedness that is assumed to be “irredeemable” (and inexpensive) is certainly not excusable conduct in the face of the generation of pathologies (obviously, to be pursued with severity when it is illegal) such as those we are describing.
The so-called “active over indebtedness” (10) consists, very banally, in the assumption of financial commitments superior to one’s own income. This very effective description is found in the frequently cited Report of the CNEL, 2008, with argumentations which seem, allow us to say, confirmative of what has just been synthesized.
There are the pathologies deriving from genuine “personality disturbances”, like drug addiction, gambling, alcoholism, which constitute – given their “maintenance” cost – the antechamber of recourse to the loan (11) .
A further reason of the insinuation of the phenomenon under discussion into an economic system is that of the “allocation asymmetry (we synthesize it in this term) in the credit sector.
The theme of bank relationship – the client, today, is more than ever at the centre of the discussions between jurists, economists, operators, vigilance authorities and political authorities.
Here, the writer does not want to avoid the clear and equally balanced division of the “blame” of the failed (rectius: mistaken) “meeting of the minds” between givers (official) and takers of money. It is in the pre-contractual moment that one must, undoubtedly, seek the origins of the interferences between the different, conflicting interests.
The funder wants, quite rightly, to guarantee a safe and profitable commitment of his money. The funded customer, obviously, wants to obtain the maximum from the commitment at the best possible price, without over exposing himself on the guarantee side. In the preparatory stage of the position to be contracted, both the subjects are tempted by ‘free-riding’. The first may exaggerate in the request of requirements and economic conditions in excess of the financing. This, above all, in the negative phases of the economic trend, such as the ongoing one. The second, on his part, is often led, by the impellent necessity of money, to artificially modify his own ‘visiting card’ to the intermediary, intervening on the documentation to be produced, in order to perfect his application procedure. Here, time and messages transmitted from one party to the other get entangled in a quagmire from which, usually, there is no escape. The additional documents required by the bank – here, it is well to distinguish the credit “from finance company”, see below – in the majority of cases, due to inexplicably bureaucratic delays, lengthen the time of the grant. In the case of a negative reply, it is obviously severed at the source, quashing the aspirations which are more or less legitimized by complete and reliable delivery of the information needed to obtain the necessary sum: often, it is a way of doing things that are necessary to govern a borderline indebtedness, i.e. a scarce profitability, which is patent, and by now, the bank does not want to accept. This way, one adds( would add) debt to debt, and if the bank is not aware of this, it is creating damage for itself and for the system. On the other hand, if the choices and the company policy of the credit institute pushes towards the collection and less towards the use; or are oriented towards the “qualified” use, i.e. that of the solid company, or that which provides more collateral and future; if the vocations to financing are oriented mainly towards strategically important sectors or to large companies; all this tends to exclude the small and medium businesses from the credit circuit.
This information, which appears confirmed by the figures recently supplied by the reports available while we write, can vary for temporal and product research realities, regardless of the above mentioned pathologies.
The physiology of the banking industry, and its regulations in reference to credit matters, can ex se generate asphyxiation of a business or of an entire sector. Just as, the economic downturn or the bad management of the commercial enterprise can obtain, speculatively, the same effect.
But it cannot be ignored that the credit regulations, especially the empirical ones – above all, after the applications of the rules of Basle 2 – should be reviewed, as recently requested to the President of the EU Commission, and by the Italian and German industrialists, but we cannot deal with it in this article.
The competitive advantage which the non-banking institutes enjoy in the delivery of financing cannot then remain suffuse at both the economic and legal levels (for the latter, see below). It is represented mostly, at least, at a first (and we excuse ourselves) partial analysis, by the major elasticity in the assessment of the credit worthiness, in the advantages of the installments of the debt (often, only apparent) and in the progressive expansion (it should be said) of the number of potential applicants, who do not find (here, it is not opportune to investigate the reasons) rapid responses from the banking system.
Also in this context, the risk of infiltration of “profiteers” on the difficulties of others, is very high; certain legal proposals presently under examination in our Parliament are precisely focused on putting a stop to the phenomena of “normative arbitrage”, when not in total avoidance of the regulations, (perhaps loose-knit?) of transparency and correctness of the credit and financial relations. The relationship of the PMI with these realities, without counting that of the consumers, is not always conditioned by the need of staple goods; on the contrary, it is spoiled by a culture, which we already mentioned, of maintaining, at any cost, exaggerated costly lifestyles. In this way the parameters of the concordance of the expiry is destroyed, as well as proportionality to income, assessment of the cost-benefit, which – without ‘beating about the bush’ – have always been and will always be, the essential canons for the choices of indebtedness of the families, but also for businesses.
These last are usually wanting of greater attention towards the “management of the treasury” even if, (also on this there is something to say,) this is very arduous in the periods in which the real market, not so much the financial one, is permeated by the absence of applications.
All the above mentioned cannot, however, justify the defence of both the parties concerned in positions of reciprocal diffidence, which breaks down when one reasons from the viewpoint of mere profit. The supply and demand of money must return to be governed by economic laws and not by mathematic rules.
Usury can be averted, according to the writer, also and above all, with “dialogue” between lender and the borrower, where the so-called “restructuring of the debt” need not be, as happened recently, imposed by the legislator, but become the primary rule of the management of situations of crisis in this area.


The regulations and the legislative answers

The Article 644 of our Criminal Code punishes, as is known, the crime of usury by an important penalty, at least, imprisonment (from two to ten years).
The Law 108, 7th March, 1996, has reformulated such regulation, fundamentally with the modification of the parameter to which is anchored the subjective element of the crime (12) .
The action must not simply consist, as in the past, in the delivery of sums of money at interest for a loan received from “anyone” – the active subject is, therefore, inclusive of companies operating in the legal credit market, as we shall see further on – and requested in a state of economic difficulty, but rather in the exceeding of “thresholds” pre-established by Law, beyond which the interests are “always usurious” (ref: para 3 of Art. 644) (13) .
The Law "de qua" has introduced also two institutes of support to victims of usury (or potentially so): respectively, the “Solidarity fund for the victims of usury” and the “Fund for the prevention of the phenomenon of usury”.
The first Fund grants ‘free of interest’ loans for not more than ten years, in favour of subjects, individuals, entrepreneurs, tradesmen and artisans who report themselves as victims of usury and are proved, in the relative criminal proceedings, to be injured. The second Fund contributes to the special funds instituted by credit consortia and to foundations and associations recognized for the prevention of the phenomenon (14) .
In this article, we cannot enter into details regarding the functionality of said funds, but they have shown, over time, to constitute an undoubted source of support to subjects stricken by the phenomenon, even if they have not revealed (as yet) to be the solution of the problem. This is often due to the shortage of resources, but less physiologically, above all, to the extreme muddle of the procedure and of the requirements for access (15) .
Their reform, in a streamlining sense, is requested in a recent Bill, bearing the title “Provisions on Usury” (Senate Act N° 307) presently in its parliamentary proceedings. Returning to the criminal law formulation. The law substitutes the criterion of the “state of need” of the victim – prodromic to the assessment of the intensity of the exploitation by the usurer – with an assessment more markedly “objective”: the exceeding of well-defined thresholds of rates administratively prefixed by the Vigilance Authorities of the financial market. The Bank of Italy publishes quarterly, on the basis of a detection mechanism (which will not be discussed here) (16) the “average rates” practiced in the preceding quarter for certain categories of operations (17) . These, increased by half, cannot be exceeded by those who grant the financing, on penalty of incrimination (allow me the over-simplification) unless there is evidence to the contrary (in such case, where the financing has been granted at a higher rate), such evidence would be impossible to find or to render: it would be, in fact, a so-called “prova diabolica”.
A litigation between an alleged usurer and the victim of the usurer, founded on mathematics rather than on the Law, and makes the writer join those many voices which arose in 1996, and still today, against such an approach (18) .
In fact, the probative mechanism was made, contrary to intentions, more difficult and burdensome; it is evident that a detection, which we understand occurs with special informatics programmes, of the exceeding of the threshold, without limits of tolerance (0.1% is equal to 10%!) cannot but produce the risk to which the so-called “legal” intermediary is exposed, more than the illegal one, of complaints of unlawfulness of his conduct (19) .
The parameters on which the construction of the usurious rates rest, updated by the Bank of Italy, in a recent document (20) , leave no space to that legal interpretation, never before now so opportune, of the taking advantage of the conditions of need (necessity), which, instead, should constitute – in our judgment – the reversal of the probative burden on the usurer (21) .
It is true that the reformed Art. 644 leaves a margin for the “residual” usury, i.e. that which affects the person who, being in conditions of “economic and financial difficulties” is made object of loans at interests which, although inferior to the thresholds "de quibus", are “disproportionate” compared to the average rates practiced for similar operations, in consideration of the “concrete modality of the fact”.
But the allover anchorage to the objective parameter has produced only convictions, almost always of financial intermediaries, motivated by the mere exceeding of the threshold.
Neither do we find, to date, conviction of someone for usury, if not connected to hypotheses of criminal conspiracy, extortion and other crimes (22) .
An important support being studied is given by the prevision in Art. 132 TUB (Unified Banking). This disposition provides that who effects loans of money, at whichever cost, without being authorized, is punished with imprisonment from six months to four years. Treated in ‘unlawful financial activities’ (23) .
It is undoubted, in our opinion, that there is a greater repressive significance in these regulations compared to those of the Criminal Code.
Who lends money at strangle interest rates is certainly an “unlawful person”; first, he is blocked for this, then for proof of the disproportion, the state of need, and all this is of use. It is true that the unlawful exercise of credit can have its origins in the untrustworthy bank employee or from the financial intermediary, with the understanding that it would be more in the hypothesis of “usurious mediation”, pursuant to para 2 of the Art.644, Criminal Code (24) .
But it finds its peculiar configuration in the “house” of the usurer, frequented by a “public” where one would certainly not find the guarantees of information, correctness and transparency that the primary and secondary Law impose on the official market.
The Bank of Italy, in a communication to the banking system of May, 2009, repeated its recommendation of maximum attention by the Credit Institutes adherent to the framework of agreement, of July, 2007, of cooperation with the Authorities. It would seem that the times of decision and delivery of the donation sums for the anti-usury funds (cited previously) are not always respected.
Appropriately, the Institute affirms that “in the ambit of the enquiry activities of the practices of credit concession, the circumstance that an applicant has suffered acts of extortion or usury cannot constitute an element of impediment to the concession of the financing”.
In this slot is included a further part of the above mentioned Bill being examined by Parliament. In fact, the Bill 307 provides for the hypothesis of the “agreement” of the insolvent subject and not entrepreneur with the bank. These must see approved by, at least, 70% of the creditors; a plan of restructuring of the debts, provided he has an income or is owner of movable goods or properties, and is insolvent (i.e. in a temporary phase of financial difficulty).The agreement can be completed, in the absence of goods and resources that can satisfy the agreement, with the help of family members who add their own resources.
The Bill “de quo” also provides the possibility for the judges to release the goods under sequestration, restoring them to the rightful owners (usury victims) in the case of extinction of the crime.
Another Senate Bill, N° 1056, institutes the “National Commission for the contrast and fight against usury and extortion”, as well as the National Register of the anti-usury associations, with a greater power of the latter to substitute itself in the rights of the victims.
The last initiative worthy of note is the House Act. N° 2055, which records a Bill for the institution of the “single national register of loan brokers”. With it, the requisites of access to said profession – which, today, are extremely bland – will become much more stringent. This is also in implementation (still, inexplicably, yet to happen!) in the special provisions contained in the Directive 2008/48/EC of the credit to the consumer, where the definition of “credit intermediary” pursuant to Art.3, para 1, letter (f) would clearly seem to include, in fact, the “credit broker”.


Conclusions

In consideration of instruments that go in the right direction and which do not render the credit sector “administrated”, as it seemed to have happened with the prevision of the threshold rates (25) .
Unquestionably, it is necessary to implement measures of “preventive conciliation”, through the associations of category, which can totally avoid that “unsustainable” over-indebtedness is reached (26) . It is necessary to intervene before the distress of the company or the individual debtor: bringing him back – on the part of the consultant/bank counterpart – to his original commitments, although re-evaluated and re-modeled by reason of the unexpected difficulties.
The surveillance of the Authorities over the financial intermediaries must be increased and more “objectified” through the increment of reportage and communications that come from the same subjects officially authorized in credit activities.
The occasions of inspection must, obviously, be reinforced, with the help of the Guardia di Finanza (military corps dealing with customs, excise and tax crimes) and other specialized divisions of the Police Force.
Not of secondary importance is the formative activity which should be addressed to the operators of both the financial system, commerce and the entrepreneurship.
In addition, the fight against unauthorized conduct is the is the main road to combat phenomena such as usury and ruined savings, because the second is often a direct derivation of the first, together with the presence on the market of brokers who are neither authorized nor trained and conscientious.
Finally, we cannot think of granting funds and various contributions without monitoring their use, accompanying the beneficiary – who, let us remember, either he is in the hands of the usurer, or he is about to be – in his process of financial restructuring.
This, in order that the donations of funds do not become merely pieces of warm wool on a cancerous carbuncle.