Venezuela has never formally sought immunity in the United States for Nicolás Maduro or his wife, Cilia Flores, despite Caracas previously describing Maduro as the country’s president, according to a new filing by US prosecutors in the criminal case against the former Venezuelan leader.
The prosecutors’ memorandum, filed on October 2 in federal court in New York, opposes a request by Maduro and Flores for sovereign immunity from prosecution on narcoterrorism and other charges. The issue is scheduled to be considered at a hearing on November 17 before Judge Alvin K. Hellerstein.
“Hasta la fecha, Venezuela no ha alegado” that Maduro or Flores are immune from judicial proceedings in the United States, the prosecutors said in the filing. They argued that neither the White House nor the government in Caracas has recognised Maduro as Venezuela’s president, and that the federal court therefore should not treat him as a serving head of state.
The filing also points to a distinction in Caracas’ treatment of Maduro and Delcy Rodríguez, Venezuela’s interim president. On the day of a US attack that resulted in Maduro and Flores being detained, Rodríguez had declared that Maduro was the country’s only president and described their detention as the “illegal and illegitimate kidnapping” of the president and first lady.
However, according to the US prosecution, Venezuela subsequently took no formal action to demand their release or assert that they were protected by immunity.
Prosecutor James M. McDonald argued that Venezuela could have formally raised an immunity claim if it wanted to establish that Maduro and Flores were entitled to such protection. The government’s failure to do so, he said, undermines the defendants’ position that Venezuela considers them immune.
The prosecutors cited Caracas’ handling of a separate case involving Rodríguez as evidence of the distinction. On May 14, Venezuela’s Foreign Ministry sent a diplomatic note asking the United States to recognise Rodríguez’s immunity in a lawsuit in Miami involving three US citizens who had been detained and tortured in Venezuela.
The White House accepted that request on July 20 and informed the court that Rodríguez was Venezuela’s head of state and therefore enjoyed immunity from the lawsuit.
Washington had recognised Rodríguez as Venezuela’s leader in March. In April, the US Treasury Department lifted sanctions imposed on her, opening the way for commercial dealings between the two governments.
Maduro and Flores’ lawyers have argued since the beginning of the case that their clients should be treated as heads of state. The defence has pointed to Rodríguez’s recognition by Washington as Maduro’s successor as part of that argument.
The prosecution, however, maintains that the United States stopped recognising Maduro as Venezuela’s president in January 2019, when he took an oath for a new six-year term following elections that the US State Department and more than 50 countries described as fraudulent.
The November 17 hearing will deal exclusively with the immunity question involving Maduro and Flores. A separate hearing is scheduled for October 8 to consider Flores’ request for house arrest and release on bail on health grounds. Prosecutors oppose that request, citing what they describe as an “extreme flight risk”.
