A complainant lost the right to the Zois scholarship for the academic year 2023/2024 because his article was entered into COBISS on 4 October 2023, and not before the start of the academic year, as stipulated in the regulations. The MDDSZ followed the Ombudsman's recommendation and at the end of 2023, by amending the ZŠtip-1C, eliminated this deficiency, but only for the future. The Ombudsman found that everyone whose articles were entered into COBISS too late was left without a scholarship, although they had no influence on this. The complainant's rights were violated, as he was not in the same position as earlier or later applicants. The MDDSZ should also find a solution for previous beneficiaries.

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In 2024, after two years, the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) considered a new complaint relating to the right to the Zois scholarship in the event of late entry of an article into the COBISS mutual database.

In January 2024, the Public Scholarship, Development, Disability and Maintenance Fund of the Republic of Slovenia (the Fund) rejected the complainant's application for the award of the Zois scholarship for the academic year 2023/2024 because the article, which the complainant claimed as an exceptional achievement, was not entered into the COBISS mutual database no later than the last day before the start of the school or academic year, but on 4 October 2023. The Fund stated in its decision that the conditions set out in Paragraph 1 of Article 10 of the Rules on the Award of Zois Scholarships (the Rules) were not met. The complainant filed an appeal against the Fund's decision, which was upheld by the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ), which overturned the Fund's decision and returned the case to the first-instance body for a new decision.

The MDDSZ also stated in its decision: "In the appeal, the first-instance body must take into account the findings and referral of the second-instance body from this decision and verify the exact date of publication of the complainant's article in the journal, which must be before 1 October 2023, and in this case, consider the claimed achievement as the complainant's exceptional achievement as timely." In the appeal, the Fund issued a decision in which, apart from the invitation to supplement the application, it did not follow the referral of the second-instance body, and for the same reason as in the original decision, it did not award the complainant points for exceptional achievement. The complainant also filed an appeal against the Fund's second decision, which the MDDSZ rejected and confirmed the Fund's decision. In the explanation of the second decision, the MDDSZ stated that for the assessment of compliance with the condition under Article 10 of the Rules, it is not important when the entry in COBISS was proposed, nor when the scientific publication was actually published, but only the actual date of entry in COBISS is assessed, and the administrative body must take into account both statutory and subordinate regulations when making a decision, regardless of their possible inconsistency with the law or the constitution; the so-called exceptio illegalis does not apply to it.

In the Annual Work Report for 2022, the Ombudsman already recommended that the MDDSZ harmonise Article 10 of the Rules on the Awarding of Zois Scholarships (Rules) with the judgment of the Higher Labour and Social Court, opr. no. Psp 94/2021 of 26 May 2021, in which it took the position that the provision of Paragraph 1 of Article 10 of the Rules, which conditions the recognition of the "exceptional" attribute of an achievement with publication in the COBISS mutual database by 1 October, is unlawful, since such a restriction does not arise from the legal norms of the Scholarship Act (ZŠtip-1) and limits the right to a scholarship. Publication in the COBISS mutual database is independent of the activities of the scholarship holder. Namely, nowhere in the Rules is (was) there a deadline set by when or with what time delay the administrator of the COBBIS mutual database must enter a certain contribution or task into it. The fact of entering the contribution into the required COBISS database is entirely left to the activity or passivity of the data controller. As the VDSS also noted, the scholarship holder should not be subject to legal consequences that are outside the scope of his legal sphere.

The Ombudsman pointed out the inadequacy of the regulation already in 2022. The position on the illegality of the Rules was also taken by case law, which was also summarised by the MDDSZ in the explanation of the first decision. The MDDSZ clearly recognised the incorrect regulation, as it prepared amendments to the legislation. The Act on Amendments to the Scholarship Act (ZŠtip-1C) amended Article 24 of ZŠtip-1 at the end of 2023, which now stipulates in Paragraph 4 of Article 24 that a publication of a scientific research paper or scientific contribution is considered to be a contribution that is published no later than the last day before the start of the school or academic year for which the applicant claims the award or continued receipt of a scholarship and for which entry into the COBISS mutual database is proposed no later than the last day before the start of the school or academic year for which the applicant claims the award or continued receipt of a scholarship, and is entered into the COBISS mutual database before the end of the current calendar year. The publication of a scientific contribution must be marked as scientific or professional in the COBISS mutual database in accordance with the specification specified in the typology of documents or works for managing bibliographies. The Rules were subsequently harmonised [1]. 

The Ombudsman asked the MDDSZ whether it had taken the wrong position in the first decision, and if not, what was the reason for the ministry changing its opinion in the second decision. During this time, the case law to which the MDDSZ had originally referred had remained unchanged. It was also difficult to understand why the Fund, at the initiative of the MDDSZ, actually called on the complainant to supplement the application in order to prove that the article had been published by the end of the academic year, and after receiving evidence that indisputably confirmed this, nevertheless decided not to change the decision.

In its response, the MDDSZ stated that the first decision was based on case law, while the second decision followed the provisions of the applicable Rules and ZŠtip-1. The cases were decided by different decision-makers, who made their decisions in accordance with their professional judgment. Following the referral from the first decision of the MDDSZ, the Fund supplemented the evidentiary procedure correctly and in accordance with the provisions of the ZUP in the repeated procedure and obtained evidence with the date of publication of the professional article in the journal, but rejected the application for the Zois scholarship because it referred to the provision of Article 10 of the applicable Rules. The MDDSZ then simply stated again that when making a decision, an administrative body must take into account both statutory and implementing regulations, regardless of their possible inconsistency with the law or the constitution; the so-called exceptio illegalis does not apply to it, and case law is not a binding legal source in this regard. The appeal body therefore relied on the provisions of the applicable Rules and ZŠtip-1 in its repeated decision. The MDDSZ took the position that the complainant was treated in accordance with the applicable regulations and in the same manner as other applicants of similar claims.

The MDDSZ did not comment on the Ombudsman's allegations that the complainant's rights were violated because, despite meeting the conditions, he was left without the right to the Zois scholarship for the year 2023/2024. The MDDSZ did indeed follow the Ombudsman's recommendation, but the discrepancy with the ZŠtip-1C was only eliminated at the end of 2023, and then only for the future. In the case, the Ombudsman found that all applicants who met the condition of proper publication of the article before the 2024/2025 academic year were left without the right to the Zois scholarship, but it was entered into the COBISS database "too late", and they could not influence the date of entry. It follows from the above that the MDDSZ did not foresee all possible consequences that could occur, as, for example, the complainant who contacted the Ombudsman was dropped from the system simply because the amendment to the law only applies to the 2024/2025 academic year, despite the fact that his right was first decided only in January 2024, when the law had already been amended; at the same time, this same amendment made it impossible for him to claim the same exceptional achievement in the new academic year, which he would otherwise have been able to do if the previous provision of Article 10 of the Rules had still been in force.

The Ombudsman thus found that the complainant's rights were violated, as he was not in the same position as the applicants a year earlier and a year later. When preparing the amendments, the MDDSZ should also address all potential applicants who were in the same position as the complainant and find a way to successfully enforce the exceptional achievement, published in the school/study year 2022/2023 and entered into the COBISS database after 1 October 2023. The complaint was justified. The complainant initiated a social dispute in the case, so the court will decide on the final outcome. 19.1-70/2024

[1] with the Rules on amendments and supplements to the Rules on the Awarding of Zois Scholarships, Official Gazette of the Republic of Slovenia, No. 53-1835/2024 of 28/06/2024.