This is what the federal government argued yesterday in its appeal against a court decision last year that spared Mr Zentai from extradition.

Mr Zentai's lawyers claim he is wanted only for questioning.

Commonwealth lawyer Stephen Lloyd SC told the full bench of the Federal Court in Perth that documents sent to the government from Hungary state that Mr Zentai is wanted for prosecution.

"That is enough to make him an accused," he told judges Anthony North, Christopher Jessup and Anthony Besanko.

Mr Lloyd said that under Hungary's justice system, if Mr Zentai were extradited he would be questioned over the alleged murder and would have the opportunity to argue his innocence. But following this, Mr Zentai could be ordered to stand trial.

"The attempt by Justice Neil McKerracher (the original trial judge) to say he's merely wanted for questioning is inaccurate," Mr Lloyd said. Justice McKerracher had erred in law and exceeded his power when ruling last July that Mr Zentai was not eligible for extradition, he said.

Mr Zentai's lawyers will argue during the appeal that he is not accused of the murder and therefore is not allowed to be surrendered under Australia's extradition treaty with Hungary.

According to the Perth pensioner's lawyers, the Hungarian government's military tribunal simply want to question him over the murder, and this could be done in Perth.

Mr Zentai was unable to attend the court yesterday after suffering a mini-stroke on Friday that left him with impaired speech.

His son, Ernie Steiner, said outside court that the stroke had been brought on by the stress of the appeal. He said his father would die if forced to go to Hungary.

Mr Zentai has always denied pulling Peter Balazs from a tram in Budapest in the last days of World War II and taking part in the beating that led to the teenager's death.

He claims he left Nazi-occupied Budapest on November 7, 1944 -- the day before Balazs, 18, was snatched and killed.

theaustralian.com.au