The Supreme Court noted as follows:

• The fumus boni iuris and periculum in mora are necessary requisites for imposing precautionary detention (Articles 329 and 330 Code Criminal Procedure). Both the Court a quo and the Public Prosecutor agreed on the persistence of fumus boni iuris. Thus, the matter under debate regarded the periculum in mora.
• Migrant smuggling is a very serious crime. This notwithstanding, the gravity of the crime-type in question is not sufficient for determining the precautionary detention of a defendant. It must be accompanied by objective elements unveiling the risk of evading criminal accountability and demonstrating that remand in custody is the only appropriate measure to apply in order to serve the purposes of justice.
• The gravity of the crime assessed in view of the quantum of penalty does not per se justify deprivation of freedom in the pre-trail phase. Precautionary detention is ruled, as all precautionary measures and amongst others, by the principle of proportionality, which requires the application of the least onerous measure for the rights of the defendant.
• The Public Prosecutor failed to show the existence of additional circumstances that could ground the periculum in mora, such as criminal record, prior involvement in similar type of criminality, possibility of the defendant interfering with investigations if free. In this latter respect, it is not enough to affirm such a risk (as, in the view of the Supreme Court, had done the Public Prosecutor in the appeal lodged); rather, it is necessary to ground such claims on objective elements.

Against this background, the Supreme Court considered remand in custody could not be applied for lack of the underlying legal requisites. However, bearing in mind the seriousness of the crime and in order to ensure the presence of the defendant through the criminal procedure, it determined the following precautionary measures (in alternative to detention):

• Obligation to appear before the Investigative Judge of Ahuachapán (El Salvador) every 15 days;
• Prohibition of leaving national territory;
• Payment of bail in the amount of 5000 USD, to be fulfilled within 30 days (under the risk otherwise of application of remand in custody).

NOTE: As per Salvadorian national law, the purpose of obtaining a financial or other benefit is not a constitutive element of the crime (see Article 367-A Criminal Code El Salvador).