The Role of the Judiciary and Constitutional Courts in the Distribution of Institutional Power: A Comparative Analysis of the Italian Republic and Bosnia and Herzegovina

Judicial independence constitutes an inseparable component of the rule of law, reflecting its very essence and enabling the full affirmation of this concept. An independent judiciary therefore presupposes a prior systemic distribution of state functions, that is, of institutional power, which ensures the autonomous status of the judicial branch and the unobstructed exercise of its role in a democratic society—namely, the protection of rights and the prevention of the uncontrolled concentration of power. This independence is manifested both through the institutional autonomy of judicial bodies and through the individual independence of holders of judicial office, which is determined not only by the adequacy of the normative framework but also by the moral and deontological integrity of individuals. Reform initiatives in Italy have given rise to concerns about potential political pressure and control over the judiciary, stemming from the fragmentation of what had previously been a unified judicial community and the establishment of two separate regimes governing the exercise of judicial functions. By contrast, the case of Bosnia and Herzegovina indicates that the establishment of a legal framework represents only an initial step toward building judicial independence, and that the crucial step toward genuinely approaching this ideal lies in the sincere commitment of political authorities, as well as of members of the judicial community themselves, to the affirmation of a culture of the rule of law. Changes in the institutional balance are also evident with regard to the constitutional adjudicatory function, as constitutional courts increasingly resort to creative instruments of legal interpretation, including interpretations of their own competences, which leads to strained relations with other branches of government and, in certain cases, to constitutional crises.