Contributed By Raczkowski
Categories of Offences
Under Polish law, two kinds of prohibited acts are recognised: offences (criminal and fiscal) and misdemeanours (minor offences). There are three separate Codes regulating the three kinds of prohibited acts: the Criminal Code for criminal offences, the Fiscal Criminal Code for fiscal offences, and the Misdemeanours Code (for misdemeanours). Criminal offences are described as prohibited acts of major harmfulness, while misdemeanours are usually of less importance and constitute a violation of administrative rules and laws. It is up to the legislator to decide whether a specific act is described as a criminal offence or misdemeanour – it is not the harmfulness of a specific act that decides the legal qualification. Fiscal offences, described in the Fiscal Criminal Code, consist of threatening or causing damage to state treasury.
All kinds of prohibited acts must be described in the legal act in force at the time of its commission. The prohibited act must fulfil the description provided in the legal act. Also, the perpetrator must be attributed fault.
Elements of an Offence
Fault is recognised as a personal charge of committing an offence in a situation where there is a requirement to act in accordance with the law. The other characteristic of a prohibited act is the perpetrator’s intent. An offence is committed intentionally if the perpetrator intends its commission; ie, he or she wants to commit it or, foreseeing the possibility of its commission, accepts this. An offence is committed unintentionally if the perpetrator, without having intent of its commission, commits it due to non-compliance with the carefulness required in the given circumstances, even though he or she has foreseen or might have foreseen the possibility of its commission. A criminal offence must usually be committed intentionally, as unintentional commission is punishable only if the statute contains such a provision.
On the other hand, misdemeanours can be committed intentionally or unintentionally, unless the statute stipulates otherwise.
Finally, the prohibited act must be socially harmful, although there is a major difference between criminal offences and misdemeanours. While misdemeanours need only to be harmful to any degree, criminal offences need to be harmful to a more than negligible degree.
Attempt to Commit an Offence
The person can also be held liable for attempting to commit a criminal offence in any case – attempting any criminal offence is punishable. Moreover, the Criminal Code provides that an attempt is punishable with the same penalty as accomplishment (although, generally, courts issue a more lenient penalty for an attempt than committing an offence). Attempting a misdemeanour is only penalised when the statute specifically provides for that.
The limitation period applied to criminal offences depends on the qualification of the given offence and penalty provided for its commission. It does not matter what penalty is imposed on a convicted person in a specific case. Committing a murder ceases to be penalised 30 years after its commission. Other crimes (felonies) – ie, offences penalised with imprisonment for not less than three years – expire 20 years after their commission. If the offence is penalised with imprisonment exceeding five years (but the lower limit of the penalty is lower than three years), such an offence expires 15 years after its commission. Offences penalised with imprisonment exceeding three years (but the lower limit of the penalty is lower than three years) expire ten years after their commission.
Other offences, except for offences prosecuted privately (eg, defamation, insult), expire five years after their commission. Finally, offences prosecuted privately expire after the lapse of one year from the moment the harmed party learned the identity of the perpetrator of the offence, but no later than three years after the moment of its commission.
Extension of Limitation Periods
All the periods provided above are to be extended if a criminal proceeding is initiated before they expire. It is not necessary to bring charges against a specific person to extend the expiry period. In the case of all offences prosecuted ex officio, the expiry period is extended for an additional ten years (ie, in the case of a murder, the expiry period is 40 years).
The limitation periods provided above are calculated from the moment of commission of an offence; ie, the moment when the perpetrator acted or omitted an action he was obliged to perform (in the case of omission). If there is a specific result that needs to appear in connection with the perpetrator’s action (eg, material damage), the limitation period is calculated from the moment when this result occurred. Also, if a continuing offence is committed or an offence consists of more than one act, the expiry period is calculated from the moment of the last action.
Jurisdiction of Enforcement Authorities
Generally, the Polish criminal statutes apply to persons who commit an offence in Poland, or to Polish citizens who committed an offence abroad. In such cases, Polish authorities have jurisdiction to conduct criminal proceedings. With regard to foreigners, they can be accused of an offence committed abroad only if such an offence was committed to the detriment of a Polish citizen or Polish organisational unit (eg, a company registered in Poland), or if such an offence is penalised with at least two years' imprisonment. In all cases of offences committed abroad, the offence needs to be penalised both in Poland and in the country where it was committed.
Jurisdiction is determined based on the place where the offence was committed. Under the applicable law, it is possible that there is more than one place of committing an offence. An offence is committed where the perpetrator acted, or failed to act in compliance with the law, or in the place where the result of the act occurred or was supposed to occur. Therefore, if a person acts in Germany, but the result is supposed to occur in Poland, both Poland and Germany may be considered as places where an offence was committed.
Corporate Criminal Liability
In Poland, the Act on Liability of Collective Entities for Acts Prohibited Under the Applicable Law was enacted in 2002 (the "Act on Corporate Liability"). According to the aforementioned provisions, the legal entity may be liable for certain white-collar offences and fiscal offences committed by its representatives, managers and even employees. In order to prosecute a legal entity, firstly an individual must be validly convicted. It is a condition for initiating proceedings against a company. A legal entity is held liable if, in the given circumstances, it can be proved that the organisation of this unit enabled or facilitated the commission of an offence due to a lack of supervision or fault in selecting the manager. The last criteria concerns fault in choosing a given person as a manager, when it could be foreseen that he or she may have commit an offence.
As the successor of the legal entity cannot be held liable for an offence committed by an individual before changing the legal form (merger, acquisition, etc), the Act on Corporate Liability is almost never applied (see the Poland Trends & Developments chapter for more information).
The victim of a white-collar offence may file a claim for compensation of all damages caused by the offence. This motion is, therefore, a part of criminal proceedings. No initial fee is to be paid for filing such a motion. In the event of a conviction, the court is obliged to impose on the convicted person an obligation to compensate the damage. If the compensation determined by the court in criminal proceedings does not cover the whole loss caused by the offence, the victim can claim the outstanding part in a civil procedure.
The victim may also file a civil claim against the perpetrator of a white-collar offence. If that should be the case, an initial fee must be paid (generally, 5% of the claim).
The draft of an amendment to the Code of Commercial Companies has recently been published. The reform concerns holding companies law; specifically, issues related to the recognition of interest of the capital group. The change may influence the approach of enforcement agencies to the offence of abuse of trust (acting to the detriment of a company) and limit the risk of criminal liability of managers operating on the Polish market.
The Ministry of Justice is also working on a new Act on Corporate Criminal Liability, which may significantly change the current regime and create a significant risk of liability for companies (especially given the unclear premises of the aforementioned liability, as well as the severe penalties to be imposed on legal entities). See the Poland Trends & Developments chapter for more information.
The main authority entitled to conduct criminal investigations and file acts of accusations is a public prosecutor. The prosecutor's offices at all levels (there are four levels: Rejonowa, Okregowa, Regionalna, Krajowa) are divided into departments. There are departments and prosecutors specialising in white-collar offences or fiscal offences.
In criminal proceedings, many activities are performed by the police under the prosecutor’s supervision. Similarly to the prosecutor's office, the police also provide specialised units designated to conduct proceedings in white-collar offence cases.
With regard to fiscal offences, criminal proceedings are usually conducted by the Tax Inspection Office/National Tax Administration, under the prosecutor’s supervision.
On the other hand, there are no court departments or judges that specialise in white-collar cases. All indictments are brought to the criminal departments of courts – judges are assigned randomly.
Initiation of an Investigation
Rules on conducting investigations and trials are described in separate codes, similarly to the rules on criminal liability (see 1.1 Classification of Criminal Offences). The Criminal Procedure Code provides for rules on conducting proceedings regarding criminal offences, while the Criminal Fiscal Code regulates the procedure in fiscal offence cases. There is also a separate Code on Procedure in Misdemeanour Cases.
Under Polish law, a criminal offence might be prosecuted ex officio or upon a private accusation. All white-collar offences are prosecuted ex officio. However, within these offences another group can be distinguished: offences prosecuted upon the victim’s request. There are many white-collar offences that are prosecuted by a prosecutor only upon the request of a victim, which means that the prosecutor cannot initiate and conduct the investigation without such a request (eg, acting to the detriment of a company and causing material damage to its property).
An investigation is initiated by a prosecutor (or, in minor cases, by the police) when there is justified suspicion that an offence has been committed. This suspicion should be based on evidence. Most of the investigations in white-collar cases are initiated based on the notification of an offence filed by the victim. It is not required to indicate a suspect at the very beginning of the case (when the investigation is initiated).
Rights of Enforcement Agencies
The prosecutor (or the police, acting under the prosecutor’s supervision) has a broad possibility of acting during the investigation. At any time the prosecutor can call any person to a questioning (excluding persons who are obliged to preserve professional secrecy; eg, advocates, legal/tax advisers and journalists). Managers, directors, members of the board and all employees may be called for questioning and they are obliged to testify.
The prosecutor can issue a written decision demanding any natural person or legal entity to provide him or her with information, documents and other objects relevant for the case. Such a demand may consist of ordering such information to be produced about employees, addresses, purchases, etc. The enforcement agencies are entitled to perform a search; eg, in the company’s headquarters. Though the company can appeal against such a decision, it does not suspend execution of the order.
Currently there are no strict rules on conducting internal investigations. Only certain entities are obliged to conduct internal investigations in some cases (eg, entities operating on the financial market, obliged entities within the meaning of AML regulations). In these cases, the entity conducting an internal investigation should ensure the whistle-blower’s protection (protection against retaliation and protection of personal data).
The prosecutor or the police may demand or seize all documents and evidence gathered during the investigation, unless they are covered by the professional secrecy of lawyers/advisers.
The evidence taken during an internal investigation may be used as evidence during the criminal investigation.
Mutual Legal Assistance between States
There are two kinds of regulations regarding legal assistance and cross-border co-operation in Polish criminal procedure: EU regulation and numerous bilateral and multilateral agreements. Recently, the European Investigation Order has played an increasingly important role in cross-border investigations. Also, the European Arrest Warrant is often applied, with Poland as both the issuing and requesting state.
Regulations regarding mutual legal assistance, in relation to both EU member and non-member states, are included in the Criminal Procedure Code. These provisions set forth the possibility of taking evidence in cross-border investigations and also taking over or transferring prosecution and jurisdiction.
Extradition of a Polish citizen is generally forbidden, as provided in the Constitution. It is permissible only if such a possibility is provided within a ratified international agreement or similar law; eg, EU regulations. Furthermore, extradition is only permissible if an offence was committed abroad and it is punishable in Poland or it would be punishable if committed on Polish territory. The extradition of a Polish citizen is nonetheless unacceptable if the suspect is charged with a non-violent offence committed for political reasons or the extradition would lead to a violation of human rights.
Initiation of a "White-Collar Investigation"
Investigations in white-collar cases may be initiated both ex officio and upon the motion of an aggrieved party, depending on the offence.
Legal entities are rarely accused of committing offences under the Act on Corporate Criminal Liability as it, inter alia, requires valid conviction of an individual acting on behalf of a company. Moreover, any transformation of the legal form of a company prevents accusation of the successor. The corporate criminal regime has proved to be inefficient. Currently, the Ministry of Justice is working on a draft of a new law in this respect.
Under Polish criminal law and procedure, there are no mechanisms to resolve the investigation without a trial, except for plea agreements.
Nonetheless, some white-collar offences are prosecuted upon the victim’s request (eg, acting to the detriment of a company and causing material damage to its property). In such cases, if the perpetrator remedies the damage, the victim might refrain from submitting the request or withdraw it. However, if the request is submitted, it can only be withdrawn upon the prosecutor’s (during the investigation) or the court’s (during the trial) consent. If the prosecutor or the court assents to the withdrawal, the proceeding is discontinued. If the prosecutor or the court does not agree, the proceeding is still pending.
There are three types of plea bargain in the Polish Criminal Procedure Code, depending on the time of concluding an agreement between the prosecutor and the suspect. The prosecutor and the suspect may agree on the terms of conviction before an act of accusation is brought to the court. In such a case, the prosecutor does not bring an act of accusation and files a request to convict the suspect and impose penalties that were agreed between them. If the victim objects to the prosecutor’s request, the case is brought to a trial. This kind of agreement can be made in most criminal cases, except for felonies (zbrodnia), the most serious offences.
If the prosecutor and the suspect do not agree on the terms of conviction, the suspect can independently file such a request, proposing a penalty and other measures to be imposed on him or her. Such a request must be made before the notification of the first trial is delivered to the suspect. The suspect can make such a request only if the offence is penalised with imprisonment for a maximum of 15 years. In this case, it is irrelevant whether the victim agrees or objects to the motion; however, the prosecutor must agree on the terms proposed by the suspect.
Finally, the suspect can file a motion to sentence him or her to a proposed penalty before the first interrogation of all the accused is finished in the trial. This request can also only be made if the offence is penalised with imprisonment for a maximum of 15 years. The prosecutor and the victim must agree on the terms proposed by the accused.
In all kinds of plea bargaining there are no independent possibilities of reducing charges or applying specific rules on suspending the sentence.
The Act on Corporate Criminal Liability provides for a catalogue of white-collar offences that, if committed within an organisation, may lead to liability of the corporate entity. This catalogue contains circa 130 offences and fiscal offences. The law is not applied in practice, due to the reasons described in the Poland Trends & Developments chapter.
Polish criminal law distinguishes between bribery and influence peddling. Bribery consists of proposing or accepting a material benefit by a public official or a person performing a public function. The amount of the benefit is irrelevant. Influence peddling consists of exerting influence in a public institution or on an official and taking on intercession in settling a matter in exchange for a material or personal benefit or its promise.
Both offences may be applied to foreign public officials or representatives of a foreign institution.
A private corruption offence (between private entities) may be committed by a manager or an employee who demands or accepts a material or personal benefit or its promise in exchange for abusing his or her power or for failing to fulfil the incumbent duties in such manner that it may inflict material damage upon such entity or constitute an act of unfair competition or inadmissible preferential activity for the benefit of the buyer or recipient of a merchandise, service or performance.
The sanction for a corruption offence is imprisonment for up to 12 years in the most serious cases.
There is no general obligation to implement a compliance management system, including anti-bribery regulations. Such regulations apply only to entities in specific branches, such as the financial sector. Banks and financial services institutions are obliged to implement an anti-fraud/bribery system containing the procedure for notifying regarding irregularities and suspicions (whistle-blowing system). However, no detailed guidelines are provided for such regulations.
According to the Warsaw Stock Exchange's guidelines, all companies listed on the Stock Exchange should implement anti-corruption regulations. The guidelines require companies to introduce an anti-corruption code and conduct risk assessments.
Draft laws on corporate criminal liability discussed in the Poland Trends & Developments chapter are supposed to introduce sanctions for lack of prevention/compliance management.
Insider Dealing/Market Manipulation
Insider dealing and market manipulation offences are described in the Act on Trading in Financial Instruments. Both regulations refer to the European Market Abuse Regulation (MAR).
Offences "against the banking system" are listed in the Banking Law, under which, whoever carries out, without authorisation, a business consisting of pooling funds of other natural or legal persons, or organisations without legal personality, in order to extend credit or loans, or expose such funds to risk in another way, shall be liable to a fine of up to PLN10 million and to imprisonment for up to five years.
Tax offences are described in the Fiscal Criminal Code. There are several fiscal offences described as tax fraud. The main tax fraud offence consists of providing the tax authorities with false information in tax declarations in order to extort the tax or reduce its amount.
Evasion of taxes is also a fiscal offence, which consists of failing to reveal the tax base or submit a declaration that exposes the tax to a depletion.
The Criminal Code provides for another kind of tax fraud, consisting of issuing a forged or false invoice, notwithstanding the results of such an act. The offence is penalised severely, depending on the amount indicated in the invoice, potentially by imprisonment for up to 25 years. The offence is aimed at fighting VAT carousels.
All persons and legal entities performing business activity are obliged to keep accounting/financial books. Failing to do so may lead to criminal liability of a person managing the entity (eg, a member of the board or a financial director). Such an offence consists of failing to keep the books, failing to keep them compliant with relevant laws, providing false data within the books, or failing to perform a financial examination. Offences are penalised with a fine or imprisonment for up to two years.
Failing to keep financial books, including accountancy books and tax books, also constitutes a fiscal offence that is penalised with a fine.
Competition law is mainly defined in two acts: the Act on Protection of Competition and Consumers, and the Act on Counteracting Unfair Competition.
Most of the offences provided within these acts are administrative offences. The Criminal Code includes one offence that refers to public tenders and penalises agreements between bidders that are to the detriment of the organising institution/entity. The potential sanction is imprisonment for up to three years.
The Consumer Law mainly sets forth administrative measures and penalties imposed by the Office of Competition and Consumer Protection. Fines may be imposed on a company or manager as a result of performing practices harmful to the collective interests of consumers, even unintentionally. These practices may consist of anti-competition agreements, merging without the chairman of the Office’s consent, and applying prohibited and unfair contractual provisions. The fine amounts to no more than 10% of the turnover generated in the financial year preceding the year in which the penalty is imposed.
There are several cybercrimes provided in the Criminal Code. Whoever, without authorisation, substantially disrupts the operation of a computer system or network by transmitting, destroying, deleting, damaging or obstructing access to computer data is subject to the penalty of imprisonment for between three months and five years. Producing, obtaining, selling or sharing devices or computer programmes adapted to commit cybercrimes or provide unauthorised persons with another person’s passwords, access codes or other data enabling unauthorised access to information stored in a computer system or network constitutes another offence penalised with imprisonment for between three months and five years. Also, a person who, with the purpose of gaining a material benefit or inflicting damage upon another person, without authorisation, affects automatic processing, collecting or transmitting of computer data, alters or deletes a computer data record, or enters a new computer data record is subject to the penalty of imprisonment for between three months and five years.
Company and Trade Secrets
Company and trade secrets are protected separately from unfair competition acts and violations unrelated to any business activity.
Whoever, without authorisation, gains access to information not intended for him or her by opening a sealed letter, plugging into a telecommunications network, or breaching or bypassing an electronic, magnetic, computer or other special protection of such information is subject to a fine, the penalty of limitation of liberty, or imprisonment for up to two years.
Fiscal (also financial/trade/customs) offences are provided in the Fiscal Criminal Code, which contains numerous offences in relation to tax obligations, subsidies, customs, etc. Fiscal offences consist of failing to provide declarations, failing to pay taxes or other tributes, tax frauds or extortion.
Obstructing/Frustrating Criminal Proceedings
Obstructing or frustrating criminal proceedings is punishable if it leads to the avoidance of, or aims to avoid, criminal liability of the perpetrator. This can consist of harbouring the perpetrator, obliterating evidence of the crime, or serving a penalty instead of to a sentenced person. A person cannot be held liable for both a predicate offence and concealment.
The Criminal Code provides for several forms of criminal conspiracy. A person might be held liable for an offence if he or she commits it (personally and alone commits an offence); commits it together and in agreement with another person or persons; directs the commission of an offence by another person; or, by taking advantage of another person's dependence on him or herself, instructs him or her to commit an offence.
Incitement and Aiding
The Criminal Code also provides for two other forms of offence: incitement and aiding. Incitement consists of persuading another person to commit an offence. Aiding consists of intentionally facilitating the commission of an offence, especially by providing an instrument, conveyance, counsel or information.
Each perpetrator, instigator and aider is held liable for his or her own offence, independently of the liability of other persons. All are subject to the same penalty.
Regulations in regards to money laundering in Poland are based on AML Directive IV, implemented in the Act on Counteracting Money Laundering and Terrorism Financing of 2018 (the “AML Act”). However, the general offence of money laundering is set forth in the Criminal Code. Under the Code, whoever receives, possesses, uses, conveys or transports abroad, conceals, transfers or converts legal tenders, financial instruments, securities, foreign exchange, property rights or other movable or immovable property, that has been obtained from the benefits derived from any offence, or assists in transferring their ownership or possession, or undertakes other actions that may frustrate or substantially obstruct the determination of their criminal origin or location, or their detection, seizure or forfeiture, is subject to the penalty of imprisonment for between six months and eight years.
Only "obliged" entities, within the meaning of the AML Act, have a duty to provide specific measures to counteract money laundering and terrorism financing, including providing a risk assessment (amended at least once every two years); implementing an internal procedure for counteracting money laundering and a procedure for receiving notifications of irregularities and conducting internal investigations; and performing due diligence and financial safety measures in relation to clients. Also, the AML Act obliges the obliged entities to notify the General Inspector of Financial Information (an administrative institution dedicated to the prevention of money laundering) of any suspicions in respect of money laundering or suspicious transactions. Such criminal offences are penalised with imprisonment for between three months and five years, if intentional, or a fine (of up to PLN1,080,000), if unintentional. Failing to do so is both a criminal and administrative offence. Providing the Inspector with false information is also a criminal offence. Moreover, failing to implement any obligation provided in the AML Act is subject to an administrative fine of up to EUR5 million.
With regard to criminal charges brought against a natural person, the authors identify two main defence strategies: lack of intention of committing an offence and exercising due diligence. Usually, defence lawyers present the suspect’s decision as justified in the given circumstances and compliant with the rules on modern business. Some decisions may be defended as an element of business risk that could not have been avoided. Diligent performance of control functions in a company may be a defence appropriate for supervisory board members who may be charged for negligent execution of their control duties (effective compliance management systems may help in the circumstances).
De Minimis Exceptions
There are no strict de minimis exceptions for white-collar offences in Polish criminal law. However, it is a general rule that all criminal offences must be socially harmful to more than a negligible degree. There are no exempt industries or sectors.
Some de minimis exceptions are provided in specific types of white-collar offences; eg, material damage of at least PLN200,000 (or direct danger of causing such damage) is required to accuse the manager of an abuse of trust offence (to the detriment of a company).
Mitigation of Penalty
In some cases, a perpetrator who caused damage to property/assets may remedy the damage before the investigation and apply for specific lenient measures to be applied.
The court may also apply extraordinary mitigation of the penalty in exceptional situations; eg, if the victim and the perpetrator have reconciled, the damage has been redressed or if the victim and the perpetrator have agreed on the manner of redressing the damage.
Also, mitigation of the penalty is obligatorily applied or the penalty is obligatorily suspended if the perpetrator who has committed an offence in complicity with other persons has disclosed information concerning the individuals participating in this offence and the relevant circumstances of its commission to a law enforcement authority (a prosecutor or the police). Similarly, upon the prosecutor’s request, the court may apply extraordinary mitigation of the penalty or suspend it with regard to a perpetrator who has, apart from providing explanations in his or her case, disclosed information on another offence, if this other offence is penalised with imprisonment for at least five years and presented its substantive circumstances to a law enforcement authority that had no prior knowledge of these facts.
There is a specific regulation on a "crown witness" in the Polish criminal law regime.
With regard to fiscal offences, the perpetrator may notify the tax office of an event of committing such an offence, disclosing all relevant information and paying the public debt. In such a case, the tax officer and the perpetrator may agree on the amount of the fine and the court may close the case by approving such an agreement.
There are no general rules in Poland in respect of whistle-blowers’ protection. Also, the EU Directive on protection of persons notifying irregularities has not yet been implemented.
There are only sectoral regulations regarding whistle-blowing. The Act on Anti-money Laundering provides for the obligation to introduce whistle-blowing procedures and ensures that whistle-blowers are protected. However, these regulations are not detailed and do not provide specific measures that should be applied. The AML Act obliges the obliged entities to protect the personality and personal data of a whistle-blower. Whistle-blowers are to be protected against discrimination, repression and other kinds of unfair treatment.
The burden of proof in all criminal cases is on the public prosecutor. Accordingly, the prosecutor should present all evidence, both in favour and against the suspect. Indictment is to be brought to the court only if all the circumstances revealed during the investigation justify the suspicion that an offence has been committed by a given person (suspect). There are no strict rules or standards providing any guidelines as to how to determine the sufficient threshold of evidence.
During the criminal proceeding, all unexplained circumstances must be eventually determined in the suspect’s/accused’s favour (in dubio pro reo). Therefore, if the prosecutor or the court has reasonable doubt about any relevant circumstances, the suspect/the accused cannot be sentenced.
Guidelines Concerning Penalties
The general rule is that the court imposes the penalty according to the level of the accused’s fault and social harmfulness of the offence. The court should also consider other factors, such as the preventative and educational aims it is to achieve with regard to the sentenced person, as well as the need to develop the legal awareness of society. The court should also take into account the perpetrator's motivation, the type and degree of the violation of the perpetrator's duties, and the type and extent of the negative consequences of the offence. Some of the characteristics and personal conditions of the perpetrator are also relevant, such as his or her way of life prior to the commission of the offence and his or her behaviour afterwards.
There are no specific rules or guidelines on imposing a penalty on perpetrators of white-collar offences; however, the Criminal Code sets forth some possibilities to limit the penalty in specific cases. If the perpetrator causes material benefit to a company’s or natural person’s property, and voluntarily remedies the damage inflicted before the investigation, the court may apply extraordinary mitigation of the penalty or even waive its imposition.