Justice
Does breaking a rule mean the decision is void?
Usually not. Legal systems distinguish between a rule that was broken and a decision that rests on the breach — and they sometimes say so in the statute that creates the duty. German law calls the test "beruhe"; two English statutes state expressly that breach does not invalidate anything.
In short
A procedural rule was broken. It does not follow that the decision falls. Between the breach and the remedy sits a question every system has to answer somehow: did this breach make a difference? The answer is rarely automatic in either direction, and the interesting part is that legislatures sometimes settle it in the same statute that creates the duty.
Why it exists
AnalysisTwo failures are available and systems have to steer between them. If every breach voided the decision, procedure would become a lottery in which the most careful party is the one that finds the smallest slip. If no breach ever did, the rules would be advice. The materiality question is where a system decides how much its own procedure is worth.
How it works
German criminal procedure puts the test in a single word. StPO § 337(1) provides that a Revision "kann nur darauf gestützt werden, daß das Urteil auf einer Verletzung des Gesetzes beruhe" — it may be based only on the judgment resting on a violation of the law. Section 337(2) defines the violation: the law is violated where a legal norm was not applied or not correctly applied.
The same statute then names the exceptions. StPO § 338, headed "Absolute Revisionsgründe", provides that a judgment "ist stets als auf einer Verletzung des Gesetzes beruhend anzusehen" — is always to be regarded as resting on a violation of the law — in an enumerated list of cases.
- The deciding court was not properly constituted (no. 1, subject to the detailed conditions the provision sets out).
- A judge or lay judge participated who was excluded from judicial office by operation of law (no. 2).
- A judge participated after a challenge for fear of bias had been declared well founded, or wrongly rejected (no. 3).
- The court wrongly assumed its jurisdiction (no. 4).
- The main hearing took place in the absence of the prosecution or of a person whose presence the law prescribes (no. 5).
- The provisions on the publicity of proceedings were violated at the oral hearing on which the judgment issued (no. 6).
- The judgment contains no grounds, or they were not placed on the file within the period arising from § 275(1) (no. 7).
England and Wales supplies the same structure in the other direction, twice, in statutes about very different things. The Sentencing Act 2020 s. 30(2) requires a court to obtain and consider a pre-sentence report before forming certain opinions about an offender aged 18 or over, unless in the circumstances of the case it considers that unnecessary. Section 30(4) then provides that where a court does not obtain and consider such a report, "no custodial sentence or community sentence is invalidated by the fact that it did not do so".
The Forensic Science Regulator Act 2021 does the same for a code of practice, in a section headed "Status of the code". Breaching the code "does not of itself make that person liable" to civil or criminal proceedings; the code is nevertheless admissible in evidence, and a court may take a failure to follow it into account in determining a question. Not nullity, not liability — relevance. Who regulates forensic science sets the section out in full.
International law says nothing that settles the question either way. ICCPR Article 14(5) provides that everyone convicted of a crime shall have the right to have the conviction and sentence reviewed by a higher tribunal "according to law" — the review is guaranteed, and what counts as a reviewable error is left to each system.
Common misconceptions
Widely held beliefs that do not match how the system actually operates.
Common belief: If a procedural rule was broken, the proceeding is void.
In practice: It does not follow, and statutes often say so expressly. Sentencing Act 2020 s. 30(4) provides that where a court does not obtain a pre-sentence report, no custodial or community sentence is invalidated by that fact.
Common belief: A breach of a statutory duty automatically creates liability.
In practice: Not automatically. Forensic Science Regulator Act 2021 s. 4 provides that a failure to act in accordance with the code does not of itself make that person liable to civil or criminal proceedings.
Common belief: German law lists the errors that are serious enough to overturn a judgment.
In practice: That inverts the structure. StPO § 337(1) states the general test — that the judgment rests on the violation — and § 338 lists the narrow cases where resting on it is presumed rather than shown.
Common belief: Absolute grounds are just the most serious mistakes.
In practice: They are the cases where the counterfactual cannot be run. An improperly constituted court or a hearing held contrary to the publicity provisions leaves nothing to compare the outcome against.
Common belief: International law fixes what counts as a reversible error.
In practice: It does not. ICCPR Article 14(5) guarantees review by a higher tribunal "according to law", leaving the content of reviewable error to each system.
Common belief: A rule that does not void anything when breached is not really a rule.
In practice: Consequence and status are different questions. The forensic code is admissible in evidence and a court may take a failure to follow it into account, which is a legal effect short of nullity.
How this varies between jurisdictions
A required section on every guide. Arrangements differ between countries, and we say how.
Four drafting techniques for the same problem, all read from primary text.
- A general test of causation stated in the appeal provision itself — Germany, StPO § 337(1) "beruhe".
- An enumerated list where that causation is presumed — Germany, StPO § 338.
- An express saving of validity attached to the duty — England and Wales, Sentencing Act 2020 s. 30(4).
- An express exclusion of liability combined with admissibility — England and Wales, Forensic Science Regulator Act 2021 s. 4.
Rights and accountability
AnalysisA materiality test is where a system is most exposed to a fair criticism: set it too high and procedural rights become unenforceable, because every breach can be met with the answer that the outcome would have been the same. The German answer to that criticism is § 338, which removes the question entirely for a defined set of cases.
AnalysisThe English examples show the criticism has force in the other direction too. A duty to obtain a pre-sentence report that cannot invalidate a sentence is enforced, if at all, by something other than nullity — and the statute does not say what.
AnalysisAsking what happens when a rule is broken is not an attack on the rule or on the court applying it. It is the question the legislature itself answered in each of these three statutes, and reading only the duty and not the consequence gives a false picture of what the law requires.
What we could not establish
- Three systems are described from primary text — Germany and, for two separate statutes, England and Wales. Whether any particular error would meet any of these tests is a question about a real case, and this page cannot answer it.
- How often reviewing courts find that a judgment rests on a violation was not researched and is not stated.
Where to go next
Related: what a reviewing court can do, cassation review, and appeal.
Related topics
- If a challenge succeeds, what actually changes?
Less predictably than the word "won" suggests. Outcomes divide by legal effect — set aside, send back, declare, compensate — and in one constitution the same court striking down the same provision produces different consequences depending on which route the case arrived by.
- What is cassation, and does a cassation court sit at the top?
Cassation is a way of examining a judgment, not a rank a court holds. German law proves the point: the Revision is confined to legal error and is heard against first-instance judgments of courts that are not the apex of anything.
- When the state gets something wrong, what is a person actually entitled to?
A remedy is what a forum can give, and constitutions state it in concrete terms: release from unlawful detention, review of an official decision, written reasons, invalidity of inconsistent law — and, in Brazil, indemnity for a wrongful conviction.
Sources
Bundesministerium der Justiz / Bundesamt für Justiz (Gesetze im Internet) · Legislation · link verified 2026-08-26
The authoritative German text of all four provisions, each read directly at its own page on Gesetze im Internet. Supports § 333: Revision is admissible against the judgments of the Strafkammern and Schwurgerichte and against first-instance judgments of the Oberlandesgerichte — so this mode of review is not confined to the highest court. Supports § 337, headed "Revisionsgründe", in full: "(1) Die Revision kann nur darauf gestützt werden, daß das Urteil auf einer Verletzung des Gesetzes beruhe. (2) Das Gesetz ist verletzt, wenn eine Rechtsnorm nicht oder nicht richtig angewendet worden ist." The Revision may be based ONLY on the judgment resting on a violation of the law, and the law is violated where a legal norm was not applied or not correctly applied — note the word "beruhe", which requires the judgment to rest on the violation rather than merely to be accompanied by one. Supports § 338, headed "Absolute Revisionsgründe": "Ein Urteil ist stets als auf einer Verletzung des Gesetzes beruhend anzusehen" in an enumerated list of cases, including where the deciding court was not properly constituted (no. 1, subject to the detailed conditions the provision sets out); where a judge or lay judge participated who was excluded from judicial office by operation of law (no. 2); where a judge participated after a challenge for fear of bias had been declared well founded or wrongly rejected (no. 3); where the court wrongly assumed its jurisdiction (no. 4); where the main hearing took place in the absence of the prosecution or of a person whose presence the law prescribes (no. 5); where the judgment issued on an oral hearing at which the provisions on the publicity of proceedings were violated (no. 6); and where the judgment contains no grounds or they were not placed on the file within the period arising from § 275(1) (no. 7). Supports § 352: the review court examines only the applications made, and where the Revision is based on procedural defects, only the facts designated when those applications were brought. Cited for the STRUCTURE of a review confined to legal error, and for the statutory distinction between a violation the judgment rests on and a listed violation where that is presumed. It establishes no equivalence with any other system's mode of review, states no time limit, and describes no procedure for bringing a Revision.
The National Archives (legislation.gov.uk) · Legislation · 2020 · link verified 2026-08-26
The official revised text, each section read directly. Supports s. 59(1): every court "must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case" and must follow relevant guidelines in exercising any other sentencing function, "unless the court is satisfied that it would be contrary to the interests of justice to do so"; and s. 59(2): that the duty is subject to an enumerated list of provisions including s. 125(1) (fine must reflect seriousness), s. 204(2) (restriction on community order), s. 230 (threshold for discretionary custodial sentence), s. 231 (shortest term commensurate with seriousness) and the mandatory-minimum provisions mentioned in s. 399(c). Supports s. 30(2): where the pre-sentence report requirements apply and the offender is 18 or over, "the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary" to do so; s. 30(3): the stricter rule for offenders under 18; and s. 30(4): that where a court does not obtain and consider such a report, "no custodial sentence or community sentence is invalidated by the fact that it did not do so". Supports s. 31(1): a "pre-sentence report" is a report made or submitted by an appropriate officer "with a view to assisting the court in determining the most suitable method of dealing with an offender", containing information as prescribed by rules; s. 31(2)(a): that for an offender aged 18 or over the appropriate officer is "an officer of a provider of probation services"; s. 31(4): that the court may accept a pre-sentence report given orally in open court; and s. 31(5): that it must be in writing for an offender under 18 in specified cases. Supports s. 201, the community order requirements table, which lists as requirement types: unpaid work; rehabilitation activity; programme; prohibited activity; curfew; exclusion; residence; foreign travel prohibition; mental health treatment; drug rehabilitation; drug testing (inserted 28 June 2022 by the Police, Crime, Sentencing and Courts Act 2022); alcohol treatment; alcohol abstinence and monitoring; attendance centre; electronic compliance monitoring; and electronic whereabouts monitoring. ENGLAND AND WALES, extent-marked E+W. It supports nothing about Scotland or Northern Ireland, states no sentence for any offence, and supports no claim about what any guideline says or how often any requirement is imposed.
Forensic Science Regulator Act 2021 (2021 c. 14), sections 1 to 7
The National Archives (legislation.gov.uk) · Legislation · 2021 · link verified 2026-08-26
The official revised text, each section read directly at its own page. Supports s. 1: "There is to be a Forensic Science Regulator" (in force 25 July 2022, S.I. 2022/856). Supports s. 2: the Regulator must prepare and publish a code of practice about the carrying on of forensic science activities in England and Wales; the code must specify the activities it applies to, need not make provision about every forensic science activity, and may make different provision for different purposes or descriptions of person; the Regulator must keep it under review. Supports s. 3: before publishing the code or alterations the Regulator must consult, including persons representative of those carrying on the activities, and may not publish unless a draft has been sent to the Secretary of State, the Secretary of State has approved it and laid it before Parliament, and the draft has been approved by a resolution of EACH HOUSE of Parliament. Supports s. 4, headed "Status of the code": "A failure by a person to act in accordance with the code does not of itself make that person liable to civil or criminal proceedings"; "The code is admissible in evidence in criminal and civil proceedings in England and Wales"; and "A court may in particular take into account a failure by a person to act in accordance with the code in determining a question in any such proceedings." Supports s. 5: the Regulator may investigate where it has reason to believe a person may be carrying on a forensic science activity to which the code applies in a way that creates a substantial risk of adversely affecting any investigation or impeding or prejudicing the course of justice, and may require documents and other information by written notice. Supports s. 7: completion certificates following a compliance notice under s. 6, with a 14-day period to respond to an application. This is the law of ENGLAND AND WALES — the provisions are extent-marked "E+W". It supports nothing about Scotland or Northern Ireland, which have separate arrangements, and nothing about any other country. It establishes no scientific claim about any forensic method.
United Nations · International organisation · 1966 · link verified 2026-07-23
Authentic treaty text as registered in the UN Treaty Series; registered ex officio 23 March 1976. Supports the fair-trial guarantees of Article 14, including the right to a competent, independent and impartial tribunal established by law, and the presumption of innocence (Art. 14(2)). Binding only on states party to it; does not support claims about states that have not ratified, nor about how any individual state applies it. WAVE 19 ADDITION, read from the same authentic treaty text in the UN Treaty Series PDF, text-extracted locally. Supports Article 14(5) in full: "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." The qualifier "according to law" is part of the provision and is load-bearing: the right is to review as the law of the state provides, not to appeal without limit or by any chosen route. Supports Article 14(6): where a person has by a FINAL decision been convicted of a criminal offence and the conviction has subsequently been reversed or the person pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to that person. Supports Article 14(3)(g), that no one shall be compelled to testify against himself or to confess guilt, and Article 14(4), that the procedure for juvenile persons shall take account of their age and the desirability of promoting their rehabilitation. WAVE 20 ADDITION. PROVENANCE, stated precisely because this record's url is a different copy: the Article 4 material below was read on 2026-08-26 from OHCHR's official PDF of the Covenant at https://www.ohchr.org/sites/default/files/ccpr.pdf. The United Nations Treaty Series copy at this record's url timed out repeatedly this session and was not re-read, so nothing in this addition rests on it. Article 4 is the derogation clause, and its four cumulative conditions are the point. Supports ICCPR Art. 4(1): “1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”. Supports ICCPR Art. 4(2), read with Arts. 6, 7, 8, 11, 15, 16 and 18 as printed in the same document: “2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.”. Supports ICCPR Art. 4(3): “3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”. The Covenant binds States Parties to it. It is NOT evidence of any particular state's domestic law, and no country claim on this platform rests on it. It designates no organ to proclaim an emergency, assigns no role to any national legislature, and creates no civil-protection institution. The Human Rights Committee's interpretation of this article is cited separately and attributed to the Committee.WAVE 21 ADDITION. Read from the same United Nations Treaty Series PDF, text-extracted and searched. Supports Art. 9(1)-(4), and specifically that the Covenant polices ARBITRARINESS rather than closing a list of grounds: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”; with 9(2) (informed at the time of arrest of the reasons and promptly of any charges), 9(3) (brought promptly before a judge or other officer authorised by law to exercise judicial power; it shall not be the general rule that persons awaiting trial shall be detained in custody) and 9(4) (entitlement to take proceedings before a court which decides without delay on the lawfulness of the detention). Supports Art. 14(1): “All persons shall be equal before the courts and tribunals”, with the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, the closed grounds on which press and public may be excluded, and the rule that judgment shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. Supports Art. 14(3)(e) (“To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”), 14(3)(f) (free assistance of an interpreter) and 14(3)(g) (“Not to be compelled to testify against himself or to confess guilt” — note that the Covenant adds the confession limb, which the European Convention text does not contain). Supports Art. 14(5). VERIFIED NEGATIVES from exhaustive search of the Covenant text: “proportion” occurs zero times, “equality of arms” zero times, and “remain silent” zero times. This is treaty text binding states party to it; it is not evidence of any state's domestic law, and the corpus invariant forbidding a treaty from standing in for a country applies to it.