In early January 2026, media reports indicated that Hungary had granted political asylum to Zbigniew Ziobro, Poland’s former Minister of Justice and Prosecutor General and a leading figure of the Law and Justice (PiS) government, who is currently facing criminal investigations in Poland. The granting of political asylum by one EU Member State to a citizen of another Member State is not merely unusual; it is structurally exceptional under EU law. The Treaties proceed from the premise that Member States are safe countries of origin for one another and that asylum is not an instrument for insulating intra-EU political or judicial conflicts from their normal channels of accountability. When Hungary granted asylum to Ziobro and simultaneously modified its surrender rules to shield recognised refugees from surrender, it did not simply offer protection to an individual claiming persecution. It raised the question whether a Member State may, through unilateral action, set aside a Treaty-level constraint designed to prevent such uses of asylum.

Asylum as Political Protection: The Ziobro Case

As reported, Zbigniew Ziobro and his wife were granted political asylum following the launch of criminal investigations into alleged abuses committed during Ziobro’s tenure under the PiS government.

After the 2023 parliamentary elections, Poland’s new government initiated a series of investigations into the operation of the Justice Fund and the politicisation of the prosecution service during Ziobro’s time in office. Ziobro currently faces more than two dozen criminal charges, primarily concerning the misuse of Justice Fund resources earmarked for victim support and offender rehabilitation. According to Polish prosecutors, these funds were instead diverted to political patronage networks and allied organisations. The investigations also cover the alleged unlawful use of Pegasus spyware against opponents, judges, and civil society actors. Ziobro has rejected all allegations, portraying the proceedings initiated as a politically motivated vendetta by the pro-EU government led by Donald Tusk.

There is no credible indication that Ziobro faces persecution on any of the grounds protected under international refugee law. Rather, the claim of persecution functions as a political framing, advanced jointly by Poland’s PiS party and Hungary’s Fidesz government, presenting the investigations as acts of revenge and selective justice. This framing is striking, coming from two parties that have dismantled (PiS) or continue to dismantle (Fidesz) judicial independence and prosecutorial autonomy in their own countries. The narrative reflects a familiar illiberal tactic: projecting one’s own practices onto others. It is a textbook example of mirror-blame, a strategy in which illiberal actors accuse their opponents of politicised justice while having themselves systematically instrumentalised courts and prosecution services against political adversaries.

There is, and should be, a strong presumption under EU law that Member States constitute safe countries of origin for one another. Under Article 2(d) of Directive 2011/95/EU, a refugee is a person who has a well-founded fear of persecution, while refugee status, within the meaning of Article 2(e), consists in the formal recognition of that condition by a Member State. That presumption, flowing from the values enshrined in Article 2 TEU, from the principle of mutual trust, and from the premise that EU citizenship entails a shared minimum level of rights protection across the Union, can normally be rebutted only in extreme circumstances for EU citizens. The strong presumption that EU Member States constitute safe countries of origin for one another is given explicit binding expression in Protocol (No 24) on asylum for nationals of Member States of the European Union. As a result, asylum applications by EU citizens are, as a rule, inadmissible, unless one of the exhaustively listed exceptions applies. None of the exceptions is relevant here: Poland has not derogated from its obligations under the European Convention on Human Rights (cf. Sole Article letter a) of Protocol (No 24)), nor is it subject to proceedings or decisions under Article 7 TEU (cf. letters b) and c)). As to the latter point, a striking irony follows: these rules would at present render Hungarian nationals, rather than Polish ones, the only EU citizens for whom such claims could even become procedurally conceivable, since Hungary is the only Member State subject to an ongoing Article 7 proceeding. Yet it is Hungary itself that has chosen to grant asylum to a former minister of a Member State not subject to any such exceptional regime.

The Protocol does allow a Member State to decide unilaterally to take an asylum application by a national of another Member State into consideration. (Cf. letter d)) That possibility, however, is subject to two conditions: the application must be dealt with on the basis of a presumption that it is manifestly unfounded, and the Council must be immediately informed. These requirements constitute the only Treaty-authorised gateway for departing from the general inadmissibility of intra-EU asylum claims. In the absence of any indication that Hungary formally notified the Council or explicitly relied on this exceptional procedure – a step that, given its institutional and political salience, would almost certainly have become known – the decision to grant asylum cannot plausibly be situated within the framework laid down by the Protocol. It therefore amounts not merely to a distortion of asylum law, but to a prima facie breach of EU primary law.

Granting asylum to a fellow EU citizen under the given circumstances amounts to a unilateral declaration by the host Member State – in the absence of any evidence establishing such extreme conditions and without any EU-level procedure having so determined – that the requesting Member State can no longer be trusted to protect its own citizens through ordinary legal and judicial means. It is precisely this implicit withdrawal of trust, bypassing the Union’s collective mechanisms, that renders such a move normatively destabilising and fundamentally at odds with the logic of European integration itself.

Any reliance on humanitarian or health-related considerations, discussed below, can arise only after the preliminary admissibility constraints imposed by Protocol No 24 have been satisfied.

Preventing surrender: Illness Claims and the Limits of Humanitarian Exception

In parallel, PiS leaders – most prominently Jarosław Kaczyński – have argued that proceedings against Ziobro are impermissible because of his allegedly serious illness. Health considerations could, in principle, become relevant under European human rights law if Poland were to seek Ziobro’s surrender for the purposes of criminal prosecution or the enforcement of a custodial sentence. However, health-related obstacles to surrender are subject to exceptionally demanding standards.

Within EU law, surrender between Member States is governed by the European Arrest Warrant (EAW) Framework Decision. In Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198), the Court of Justice of the EU (CJEU) held that execution must be postponed, and may ultimately be refused, by the executing judicial authority where there is objective, reliable, and up-to-date evidence of systemic or generalised deficiencies in the issuing Member State, combined with a real risk of inhuman or degrading treatment contrary to Article 4 of the Charter.

That logic was later transposed to judicial independence in LM (Case C-216/18 PPU, ECLI:EU:C:2018:586), where the Court required the executing judicial authority to apply the two-step test: first, to determine whether such systemic deficiencies exist; and second, to assess individually whether the person concerned would face a real risk of a breach of the right to a fair trial.

However, in E.D.L. (Case C-699/21, ECLI:EU:C:2023:295), the CJEU clarified that, in addition to the Aranyosi/LM test (systemic deficiencies plus individual risk), there exists a very narrow, autonomous humanitarian exception to the execution of an EAW. Crucially, this exception does not depend on the existence of systemic or generalised value deficiencies in the issuing Member State. Even where a Member State is presumed to comply with the rule of law and fundamental rights, surrender may still be impermissible in genuinely exceptional individual circumstances – such as those involving serious and substantiated health-related risks.

Against this background, the Hungarian government conspicuously avoided allowing courts to assess Ziobro’s situation under these demanding CJEU standards, should Poland ever request his surrender. Instead, as I will show in the following, it chose to intervene legislatively, reshaping the legal framework in a manner that pre-empted judicial scrutiny altogether.

Neutralising Surrender: Asylum as a Bar to the European Arrest Warrant

Even assuming, contrary to Protocol No 24, that asylum could lawfully be granted to Ziobro, the granting of asylum does not in itself confer blanket immunity from surrender. Poland could, in principle, request the surrender of Ziobro and his wife under an EAW. To prevent this, Hungary amended its domestic law on international criminal cooperation, and introduced an automatic bar to surrender once asylum has been granted.

Pursuant to Section 5(1)(f) of Act CLXXX of 2012 on criminal cooperation with Member States of the European Union, execution of an EAW must be refused where surrender would seriously violate the person’s fundamental rights as guaranteed by an international treaty or an act of EU law. A newly inserted Section 5(1a) – entering into force on 2 January 2026 – provides that Section 5(1)(f) must also be applied where an EAW has been issued against a person recognised as a refugee by Hungary or by another EU Member State, if the warrant was issued by the state from which that person fled.

The rule further applies where the person’s refugee status has formally ceased because they acquired Hungarian or another EU Member State’s citizenship, provided that the substantive conditions for refugee recognition continue to exist – an assessment entrusted not to courts, but to the competent minister exercising humanitarian discretion.

This legislative intervention has three far-reaching consequences. First, it transforms refugee status into a near-automatic veto on surrender: once asylum is recognised, execution of an EAW issued by the country of origin is treated as a per se violation of fundamental rights. Second, it shifts decisive power from the judiciary to the executive, marking a profound departure from the logic of mutual judicial trust that underpins EU criminal cooperation. Third, it enables the strategic use of asylum to neutralise mutual trust within the EAW system even in the absence of any systemic or individualised deficiencies that would otherwise justify refusal under EU law.

The Shadow of Autocratic Legalism in the EU Legal Order

The Ziobro asylum episode is not an isolated humanitarian exception, but a structurally revealing case. The domestic legal changes that neutralise surrender obligations under the EAW are a textbook example of autocratic legalism (Scheppele), legality deployed not to protect rights, but to shield power and dismantle mutual trust from within. In this case, however, the technique goes further. What we observe is an atypical combination of ruling by cheating (Sajó) under a veneer of legality and the open circumvention of a Treaty-level constraint designed precisely to prevent the instrumentalisation of asylum among Member States.

From the perspective of EU law enforcement, this constellation opens several avenues. Hungary’s legislative intervention may amount to a breach of the principle of sincere cooperation under Article 4(3) TEU, as it undermines the effectiveness of the EAW system and converts asylum into a unilateral veto on surrender. The episode is also relevant in the context of the rule-of-law conditionality mechanism, as it directly concerns prosecution, judicial cooperation, and the effective enforcement of EU law.

Beyond legal enforcement, the political consequences should not be underestimated. Further isolation of Hungary within the Union is a foreseeable outcome. Finally, albeit more of a theoretical possibility as of today, Article 7(2) TEU remains formally available, and the European Parliament has repeatedly urged its activation against Hungary, most recently in November 2025, to acknowledge the existence of a serious and persistent breach of Article 2 values. Even if Article 7(2) remains procedurally blocked due to the unanimity requirement, episodes such as this continue to accumulate as evidence of systemic bad faith – and its shadow continues to shape the legal and political assessment of Hungary’s position within the Union.

I am grateful to Professor John Morijn for his review of this post, especially for his valuable comments on the interpretation and implications of Protocol No 24; all remaining errors are, of course, my own.